; 


if 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


SUSPENSION 


OP    THE 


POWER  OF  ALIENATION, 


AND 


POSTPONEMENT  OF  VESTING, 


UNDER  THE  LAWS  OF  NEW  YORK. 


WITH  AN  APPENDIX 


CONTAINING  REFERENCES  TO   THE   STATUTES   AND   DECISIONS    IN   THE    STATES 
OF  MICHIGAN,    MINNESOTA  AND  WISCONSIN. 


BY 


STEWART    CHAPLIN, 

COUNSELLOR   AT   LAW. 


SECOND    EDITION. 


NEW  YORK: 
BAKER,  VOORHLS  &  COMPANY, 

1911. 


r 

\Q 


Copyright,  1891, 
By  STEWART  CHAPLIN. 

Coy  pright,  1911, 
By  STEWART  CHAPLIN. 


r-4 


PKEFACE 

TO  THE  FIRST  EDITION. 


The  well-known  works  of  Mr.  Lewis  and  of  Mr.  Mars- 
den  on  Perpetuities,  and  of  Professor  Gray  on  Perpetui- 
ties, and  on  Restraints  on  Alienation,  deal  with  the  law  in 
force  in  England,  and  in  many  of  our  States.  "With  the 
adoption  of  the  Revised  Statutes,  however,  New  York 
abandoned  the  system  embodied  in  this  law,  and  instituted 
a  system  of  her  own,  which,  except  in  its  application  to 
personal  property,  has  since  been  adopted  in  Michigan, 
Minnesota  and  Wisconsin. 

The  changes  thus  introduced  have  been  of  so  radical 
a  character  as  to  render  inapplicable,  to  a  large  degree, 
the  treatises  and  reports  embodying  the  earlier  law.  The 
present  book  deals  with  the  law  of  New  York,  Michigan, 
Minnesota  and  "Wisconsin,  on  the  subject  of  suspension  of 
the  power  of  alienation,  and  of  ownership,  and  postpone- 
ment of  vesting,  and  points  out,  in  an  appendix,  certain 
features  in  which  the  laws  of  the  three  latter  States  differ 
from  those  of  New  York.  The  appendix  also  gives  the 
statutes  of  seven  other  States,  which  have  followed  the 
lead  of  New  York  in  so  far  as  to  substitute  for  the  Rule 
against  Perpetuities  a  statutory  provision  against  suspen- 
sion of  the  absolute  power  of  alienation,  and  in  which 
many  of  the  principles  discussed  in  the  following  pages  are 
consequently  applicable. 

New  York,  October,  1891. 


PEEFACE 

TO  THE  SECOND  EDITION. 


It  is  now  twenty  years  since  the  first  edition  of  this 
book  was  published.  During  that  time  the  statutory  pro- 
visions which  were  there  considered,  and  which  were  then 
a  part  of  the  Revised  Statutes,  have  been  repealed,  and  re- 
enacted,  sometimes  in  altered  form,  in  the  Real  Property 
Law  and  the  Personal  Property  Law ;  and  these  again, 
with  amendments,  are  now  chapters  of  the  Consolidated 
Laws. 

For  the  same  period,  the  reports  contain  many  cases 
dealing  with  interesting  and  important  subjects  in  this  field. 
Many  questions  which  were  open,  twenty  years  ago,  and 
were  discussed  at  length,  have  now  been  answered  by  the 
courts,  and  thus  call  only  for  brief  statement.  New 
questions,  however,  of  importance,  have  come  forward  for 
attention,  and  are  here  fully  considered. 

With  the  former  edition,  and  all  the  statutory  changes, 
and  the  new  reported  cases,  as  material,  the  book  has  been 
re-written  from  beginning  to  end,  with  a  hope  that  the 
result  may  at  least  indicate  a  sincere  appreciation  of  the 
kindly  reception  and  continued  favor  which  have  been  ac- 
corded by  the  profession. 
September,  1911. 


CONTENTS. 


PAGE. 

TABLE  OF  STATUTES xi 

TABLE  OF  CASES xxi 


CHAPTER   I. 

INTRODUCTORY. 

sections. 

The  Three  Rules 1-7 

Rule      I.   Alienability 2-3 

Rule    II.  Vesting 4-6 

Rule  III.   Absolute  Ownership 7 

Scope  op  the  Rules 8-11 

Historical 12-19 

Purposes  op  the  Rules 20-28 


CHAPTER  II. 

GENERAL  PRINCIPLES. 

Alienability.     TnE  General  Statutory  Provision 29-30 

The  Absolute  Power  op  Alienation 31-37 

No  Persons  in  Being 38-70 

The  Statutory  Period 71-123 

The  Creation  of  the  Estate 72-73 

Two  Lives  in  Being 74 

Two  Lives  the  Necessary  Measure.     Exception. . .    7.">-77 

Designation  of  the  Lives 78-79 

Any  Two  Lives  may  be  Designated 80 

vii 


viii  TABLE  OF  CONTENTS. 

SECTIONS. 

Part  of  a  Life  is  a  Life 81 

A  Minority  is  a  Life ... . 82 

The  Period  of  Gestation 83 

Life  of  Eldest  or  Youugest  Surviving  Child 84 

Life  of  Wife,  Widow,  Husband 85 

The  Additional  Term  of  Minority 86-93 

The  Statutory  Requirement  is  Imperative 94-95 

Subordinate  Measures  of  Period  when  Permitted 96-99 

Alternative  Lives,  when  Permitted 100 

Successive  Suspensions  under  Successive  Instruments 101 

Separate  Statutory  Periods  for  Separate  Shares 102-112 

Number  of  Beneficiaries  is  not  Limited 113 

Illegal  Term  is  not  Presumed 114-115 

The  Statutory  Period  for  Contingencies 116 

The  Statutory  Period  for  Trusts  to  Apply  Rents 117 

The  Statutory  Period  for  Trusts  to  Accumulate  Rents 118 

The  Statutory  Period  as  to  Powers 119 

The  Statutory  Period  as  to  Chattels  Real 120 

The  Statutory  Period  as  to  Disposition  of  Rents 121 

The  Statutory  Period  for  Postponement  of  Vesting 122 

The  Statutory  Period  as  to  Personal  Property 123 

Certain  Dispositions  Not  Affected 124-138 


CHAPTER  III. 
SUSPENSION  OCCASIONED  BY  CONTINGENCIES 139-164 


CHAPTER  IV. 

SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS. 

The  Four  Classes  of  Express  Trusts 165-172 

The  Trustee  and  the  Beneficiary 173-181 

What  Trusts  Occasion  Suspension 182-198 

Leases  Under  Express  Trusts 199-200 

Trust  to  Satisfy  Mortgage  from  Rents 201-204 

Trust  to  Pay  Annuity  from  Rents 205-210 

Statutory  Period  for  Trusts  to  Accumulate 211-221 

Statutory  Period  for  Trusts  to  Apply  Rents 222-240 

Combination  of  Different  Trusts  and  Powers 241-243 

Rents  and  Profits  Undisposed  Of .  .244-245 


TABLE  OF  CONTENTS.  ix 

CHAPTER  V. 

SUSPENSION  OCCASIONED  BY  POWERS. 

sections. 

Powers  Defined  and  Classified 346-249 

Relation  of  Powers  to  Title 250 

Relation  of  Powers  to  Suspension 251-257 

Powers  that  do  not  Occasion  Suspension 258-268 

(a)  Beneficial  Powers 259 

(b)  General  Powers  to  Sell  or  Convey 260 

(c)  Powers  to  Hold  and  Manage 261 

(d)  Determinable  Powers  to  Sell  in  Future 262-266 

(e)  Revocable  Powers 267-268 

Powers  that  do  Occasion  Suspension 269-292 

(a)  Powers  of  Sale,  Proceeds  to  Trustee 270-272 

(b)  Powers  of  Sale,  Proceeds  to  Persons  not  in  Being 273-275 

(c)  Imperative  Powers  to  Appoint 276-280 

(d)  Imperative  Powers  to  Convey -281-285 

(e)  Non-Terminable  Powers  to  Sell  in  Future 286-292 

Powers  that  Obviate  Suspension 293 

The  Statutory  Period  as  to  Powers 294-298 


CHAPTER  VI. 

POSTPONEMENT  OF  VESTING. 

Rule  II.     Vesting 299-312 

Historical 300-301^ 

The  General  Statutory  Scheme 302-303 

' '  Remainders. " ; 304-308 

' '  Within  "  the  Statutory  Period 309 

"Must  Vest."     "If  Ever." 310 

Must  Vest  "  in  Interest." 311-312 

Sources  of  Rule  II 313-367 

Remainder  on  a  Fee 314-318 

Remainder  on  an  Estate  for  Life  319-334 

Remainder  on  a  Term  of  Years 335-341 

Remainder  on  Estate  in  Trust 342-351 

Remainder  on  Execution  of  Power 352-364 

Remainder  in  Default  of  Appointment 365 

Remainder  to  a  Class 366-367 

The  Statutory  Period  for  Postponement ...        368 


X  TABLE  OF  CONTENTS. 

CHAPTER  VII. 

PERSONAL  PROPERTY. 

SECTIONS. 

Rule  III.     Absolute  Ownership  369-386 

The  General  Statutory  Provision 370-371 

The  Meaning  of  Absolute  Ownership 372-386 

Suspension  by  Contingencies 387-394 

Suspension  by  Express  Trusts 395-411 

Suspension  by  Powers 412 

The  Statutory  Period , 413 


CHAPTEE  VIII. 

GIFTS  FOR  CHARITY. 

Prior  to  Laws  1893,  Chapter  701 414-417 

Since  Laws  1893,  Chapter  701 418-420 


CHAPTER  IX. 
EQUITABLE  CONVERSION 421-425 


CHAPTER  X. 

SEPARABILITY. 

General  Principles 426-429 

Alternative  Future  Dispositions 430-443 

Simple  Alternative  Contingencies 433 

Involved  Alternative  Contingencies 434-440 

Contingencies  with  an  Alternative  Application 441-^43 


CHAPTER  XI. 

CONSTRUCTION 444-510 


TABLE  OF  CONTENTS.  xi 

CHAPTER  XII. 

SECTIONS. 

CONFLICT   OF  LAWS 511-522 


APPENDIX. 

Michigan,  Minnesota  and  Wisconsin 523-525 

PAGE. 

TABLE  OF  INDEX  TOPICS 357 

INDEX 359 


17 
29 

47 
93 


59 


Sec.   11 


TABLE  OF  STATUTES. 


NEW  YORK  STATUTES. 

Code  of  Civil  Procedure. 


Sec.  1391 

Page  31,  116 

1537 

25 

1871 

31 

1873 

31 

1879 

31 

2463 

31 

County  Law, 

Sec.    152  Page  285 

Decedent  Estate  Law. 
Sec.    13  page  17 


285 
345 
348 
49 


Domestic  Relations  Law. 


Sec.   52  Page2G8 


102 
Personal  I^ropcrty  Law. 


Page  31,  32,  38,  39,  40,  138,  222,  250.  263, 
265,  267,  268,  272 

12  283 

13  283 

13a  283,  285,  356 

xiii 


XIV 


TABLE  OF  STATUTES. 


Sec.    14  Page  283 

15  81,  143,  267,  268 

16  128,  132,  133,  268 

17  116,  133 

18  261 

23  23,  26,  28,  268 

34  31,  32 

Real  Property  Law. 

Sec.   10  Page  17 


14 


17 


15  17 

30  231 

32  217,  330,  345 

33  38 

35  84,  85 

36  85,  90 

37  207,  208 

38  205,  207,  224 

39  207 

40  85,  92,  207,  319,  330 

41  163,  247 

42  13,  16,  38,  39,  40,  46,  47,  48,  51,  73,  99, 

131,  134,  135,  136,  137,  138,  141, 
142,  150,  170,  174,  175,  201,  205, 
216,  249,  251 

43  211,  220,  221,  222,  228 

44  221,  228 

45  221,  228 

46  229 

47  211 

48  343 

49  38,  74,  75,  84,  229,  250 

50  54,  84,  205.  207,  209,  216,  221,  229 

51  53,  201,  296 

52  205,  214 

53  205 

54  205,  320 

55  205 

56  49,  205 

57  205,  207 

58  205,  207 

59  85,  88 

60  38,  74,  84,  136,  137,  138 

61  52,  115,  120,  127,  128,  129,  130,  131, 

135 


TABLE  OF  STATUTES.  xv 

Sec.  62  Page  116,  128 

63  128,  145 

64  38 

65  224 

66  70,  228 

91  100,  279 

92  38 

93  102 

96  4,  21,  31,  99,  100,  109,  110,  112,  114, 

118,  119,  120,  121,  122,  123,  124, 
125,  126,  135,  141,  142,  144,  236,  279 

9.  107,  121 

98  31 

99  101,  293 

100  104.  107,  108 

101  105 

102  106 

103  31.  33,  36,  103,  113,  114,  117,  121,  143 

105  103,  110,  267 

106  103 

107  103 

109  43 

110  43 

113  282,  285 

114  282,  285 
114a  282,  285,  356 

115  282 

130  4,  149,  278 

131  84,  147,  172,  174 

133  148 

134  148 

135  148 

136  148,  154 

137  148 

138  148 

144  27,  84,  149,  172,  174 

145  27 

148  27,  158 

149  149,  154,  175 

150  149,  154,  175 

151  149,  154,  172,  175 

152  149,  154,  175 

153  149,  154.  175 

154  149 

157  73,  163 

158  162,  163 
160  163 


xvi  TABLE  OF  STATUTES. 

Sec.  161  Page  149 

162  149 

163  168 

170  168 

171  168 

172  168 

173  27 

174  27 

177  73 

178  84, 150,  164,  172,  175 

179  84,  150,  152,  171,  172,  174,  17* 
182  149 

240  308 

244  38 

461  140 

Religious   Corporation  Law. 

Sec.   7  285 

Statutory  Construction  Law. 

Sec.  95  138 

MICHIGAN  STATUTES. 

354-356. 

MINNESOTA  STATUTES. 

354-356. 

WISCONSIN   STATUTES. 
354-356. 


TABLE  OF  CASES. 


(References  are  to  pages.) 


Ackerman  v.  Gorton,  67  N.  Y.  63 175,  312 

Ackermann,  Matter  of,  36  Misc.  752,  74  N.  Y.  Supp.  477 277 

Adams  v.  Berger,  18  N.  Y.  Supp.  33 54 

Adams  v.  Massey,  184  N.  Y.  62 311 

Adams  v.  Perry,  43  N.  Y.  487 96,  101,  166,  279,  280,  290,  291,  293 

Adams  v.  Wilbur,  1  Fed.  Cas.  No.  70 140 

Ahearn  v.  Ahearn,  52  App.  Div.  356 42,  46,  48 

Akin  v.  Kellogg,  119  N.  Y.  441 292 

Allen,  Matter  of,  151  N.  Y.  243 248,  312 

Allen  v.  Allen,  149  N.  Y.  280 15,  21,  22,  51,  67,  160 

Allen  v.  Stevens,  161  N.  Y.  122 281,  284,  285,  293 

Almstaedt  v.  Bendink,  47  App.  Div.  265 41 

Altrock  v.  Vandenburgh,  25  N.  Y.  Supp.  851 95 

Amherst  College  v.  Ritcb,  151  N.  Y.  282 102,  281,  285 

Amory  v.  Lord,  9  N.  Y.  403 104,  108,  137,  232,  290 

Anderson  v.  Jackson,  16  Johns.  382 343 

Andrews  v.  Whitney,  82  Hun,  117 32 

Armstrong  v.  McKelvey,  104  N.  Y.  179 157,  288 

Arnold  v.  Congreve,  1  Russ.  &  M.  209 304 

Arnold  v.  Gilbert,  5  Barb.  190 291 

Arnot  v.  Arnot,  75  App.  Div.  230 48 

Asche,  Matter  of,  75  App.  Div.  486 26 

Asche  v.  Asche,  113  N.  Y.  232 99,  104,  105,  106,  287,  292 

Ashforth,  In  re,  L.  R.  (1905)  1  Ch.  Div.  535 190 

Attenborough  v.  Attenborough,  1  K.  &  J.  296 163 

Atwater  v.  Russell,  49  Minn.  57 354,  356 

Austin  v.  Oakes,  117  N.  Y.  577 73,  108,  344 

Avery  v.  Everett,  110  N.  Y.  317 24,  86,  346 

Ayres  v.  Trustees,  3  Sandf .  351 281 

Baer,  Matter  of,  147  N.  Y.  344 94,  165,  166,  248,  312,  339,  341,  343 

Bailey  v.  Bailey,  97  K  Y.  460 45,  61,  71,  134,  141,  292 

Baird,  Matter  of,  126  App.  Div.  439 138 

Baker,  Matter  of,  12  State  Rep.  741 70 

Baker  v.  Lorillard,  4  N.  Y.  257 73,  87 

xvii 


xviii  TABLE  OF  CASES. 

(References  are  to  pages.) 

Baltes  v.  Union  Trust  Co.,  180  N.  Y.  183 25,  32,  267,  268 

Bank  of  Niagara  v.  Talbot,  110  App.  Div.  519;  184  N.  Y.  576 76 

Banks  v.  Phelan,  4  Barb.  80 251 

Banzer  v.  Banzer,  156  N.  Y.  429 80,  310 

Barber  v.  Brundage,  169  N.  Y.  368 85 

Barber  v.  Cury,  11  N.  Y.  397 5 

Barbour  v.  DeForest,  95  N.  Y.  13 128,  131,  146,  268 

Barker  v.  Crosby,  32  Barb.  184 291 

Barnard  v.  Gantz,  140  N.  Y.  249 28 

Barrow  v.  Richard,  8  Pai.  351 97 

Barry  v.  Lambert,  98  N.  Y.  300 266 

Barson  v.  Mulligan,  191  N.  Y.  306 310,  346 

Bascom  v.  Albertson,  34  N.  Y.  584 279,  280,  281,  349 

Bascom  v.  Weed,  53  Misc.  496 64,  248 

Bean  v.  Bowen,  47  How.  Pr.  306 41,  129,  291 

Bean  v.  Hockman,  31  Barb.  78 41,  45,  50 

Beardsley  v.  Hotchkiss,  96  N.  Y.  201 18,  24,  56,  57,  86,  173,  223,  251 

Beaver  v.  Beaver,  117  N.  Y.  421 99,  267 

Beck  v.  McGillis,  9  Barb.  35 17 

Becker,  Matter  of,  59  Misc.  135 76 

Becker  v.  Becker,  13  App.  Div.  342 47,  49,  126 

Becker  v.  Chester,  115  Wis.  90. . .  t 355 

Beecher  v.  Yale,  45  N.  Y.  Supp.  622 279 

Beekman  v.  Bonsor,  23  K  Y.  298 41,  43,  101,  160,  169,  279 

Beekman  v.  People,  27  Barb.  260 285 

Beers  v.  Grant,  110  App.  Div.  152 ;  185  N.  Y.  533 42 

Bell  v.  Hepworth,  134  N.  Y.  442 81 

Belmont  v.  O'Brien,  12  N.  Y.  394.  .19,  20,  21,  22,  27,  28,  101,  109,  144,  145 

Bender  v.  Paulus,  197  N.  Y.  369 108 

Benedict  v.  Dunning,  110  App.  Div.  303 43 

Benedict  v.  Webb,  98  N.  Y.  460 39,  46,  47,  293 

Bennett  v.  Chapin,  77  Mich.  526  156,  354 

Bennett  v.  Garlock,  79  N.  Y.  302 107,  141,  231 

Bennett  v.  Rosenthal,  11  Daly,  91 267 

Bensel,  Matter  of,  70  Misc.  279 64 

Benson,  Matter  of,  96  N.  Y.  499 312 

Benson  v.  Corbin,  145  N.  Y.  351 310,  344 

Bergmann  v.  Lord,  194  N.  Y.  70 32,  106,  116,  265,  267,  271 

Bertles  v.  Noonan,  92  K  Y.  152 4 

Betts  v.  Betts,  4  Abb.  N.  C.  317 19 

Beurhaus  v.  Cole,  94  Wis.  617 355,  356 

Bevan  v.  Cooper,  72  N.  Y.  317 67 

Bevins  v.  Riley,  24  Week.  Dig.  35  45 

Bindrim  v.  Ullrich,  64  App.  Div.  444 ;  173  N.  Y.  587 41 

Bingham,  Matter  of,  127  N.  Y.  426 , 287 

Bingham  v.  Jones,  25  Hun,  6 .    64,  67 

Bird  v.  Merklee,  144  N.  Y.  544 280,  284 


TABLE  OF  CASES.  xix 

(References  are  to  pages.) 

Bird  v.  Pickford,  141  N.  Y.  18 60 

Birdsall  v.  Grant,  37  App.  Div.  348 96 

Bishop  v.  Bishop,  4  Hill,  138 140 

Bisson  v.  W.  S.  R.  R.  Co.,  143  N.  Y.  125 94,  248,  339 

Blanchard  v.  Blanchard,  4  Hun,  287;   70  N.  Y.  615. . .  .19,  70,  76,  156,  169 

Blanchard  v.  Blanchard,  1  All.  223 314 

Blauvelt,  Matter  of,  131  N.  Y.  249  147 

Blight  v.  Hartnoll,  19  Ch.  Div.  294 198 

Bliven  v.  Robinson,  83  Hun,  208 ;  152  N.  Y.  333 25 

Bliven  v.  Seymour,  88  N.  Y.  469..  .70,  76,  127,  175,  259,  265,  270,  274,  342 

Blood  v.  Kane,  130  N.  Y.  514 272 

Boardman  v.  Hitchcock,  136  App.  Div.  253;  202  N.  Y.  (Mem.) 285 

Bogert  v.  Hertell,  4  Hill,  492 288 

Bolton  v.  Jacks,  6  Robt.  166 132,  292 

Booker  v.  Booker,  119  App.  Div.  482 79 

Booth  v.  Baptist  Church,  126  N.  Y.  215 41,  95,  102,  219,  280,  312 

Bork  v.  Martin,  132  N.  Y.  280 266 

Bostwick,  Matter  of,  160  X.  Y.  489 28 

Bowditch  v.  Ayrault,  138  N.  Y.  222 248,  263,  265,  311,  313,  342,  346 

Bowen  v.  Sweeney,  89  Hun,  359 ;  154  N.  Y.  780 25 

Bowers,  Matter  of,  109  App.  Div.  566;  184  N.  Y.  574 312 

Bowers  v.  Beekman,  16  Hun,  268 224 

Bowman  v.   Domestic  &  Foreign  M.  Soc'y,   100  App.  Div.  29;  182 

N.  Y.  494 284 

Boynton  v.  Hoyt,  1  Den.  53 48,  128 

Bradhurst  v.  Bradhurst,  1  Pai.  331 126 

Bradhurst  v.  Field,  135  N.  Y.  564 310 

Bramhall  &  Ferris,  14  N.  Y.  41 21,  24,  31,  32 

Brandreth,  Matter  of,  169  N.  Y.  437 85,  265,  272,  342,  346 

Brandt  v.  Brandt,  13  Misc.  431 41 

Bray,  Matter  of,  118  App.  Div.  533 76,  230,  256 

Brearley  School  v.  Ward,  201  N.  Y.  358 23,  31,  32,  33,  36,  108.  116 

Bremer  v.  Penniman,  72  N.  Y.  603 21,  22,  261,  266 

Brennan  v.  Willson,  71  N.  Y.  502 107 

Brevoort  v.  Brevoort,  70  N.  Y.  126  23 

Brevoort  v.  Grace,  53  N.  Y.  245 23 

Brewer  v.  Brewer,  11  Hun,  147;  72  N.  Y.  603 21,  22,  261,  266 

Brewster  v.  Striker,  2  N.  Y.  19 101,  231 

Bridge  v.  Ward,  35  Wis.  687 80,  355 

Briggs  v.  Davis,  21  N.  Y.  574 107,  231,  236 

Brooklyn,  City  of.  v.  Seaman,  30  Misc.  507 60,  61 

Broughton  v.  Jones,  1  Colby  Ch.  R.  26 57 

Brown,  Matter  of,  154  N.  Y.  313. . .  .67.  71,  73,  86,  105,  146,  162,  166,  231, 

247,  248,  259,  261,  277,  278,  313.  342 

Brown.  Matter  of,  29  Hun,  412 ;  93  N.  Y.  295 87,  324 

Brown  v.  Barker,  68  App.  Div.  592 32 

Brown  v.  Brown,  54  App.  Div.  6 78 


XX  TABLE  OF  CASES. 

(References  are  to  pages.) 

Brown  v.  Evans,  34  Barb.  594 45,  50,  57,  95,  211,  219,  303 

Brown  v.  Mutual  Trust  Co.,  22  Week.  Dig.  395 82,  256,  270 

Brown  v.  Quintard,  177  N.  Y.  75... 42,  46,  61,  67,  111,  125,  131,  139,  290, 

292 

Broun  v.  Richter,  76  Hun,  469;  144  K  Y.  706 67,  69,  291,  293,  307 

Brown  v.  Richter,  25  App.  Div.  239 105 

Brown  v.  Spohr,  87  App.  Div.  522;  180  N.  Y.  201 28,  100,  266 

Brown  v.  Wadsworth,  168  N.  Y.  225 320 

Bruchaeser,  Matter  of,  49  Misc.  194 54fc  291 

Bruner  v.  Meigs,  6  Hun,  203 ;  64  N.  Y.  506 64,  149,  167 

Bryan  v.  Knickerbacker,  1  Barb.  Ch.  409 131 

Buchanan  v.  Little,  154  N.  Y.  147 126,  144,  292 

Buchanan  v.  Tebbetts,  69  Hun,  81 158,  169 

Buchner,  Matter  of,  60  Misc.  287 64,  291,  295 

Buel  v.  Southwick,  70  N.  Y.  581 344,  345 

Bulkley  v.  DePeyster,  26  Wend.  21 67 

Bunnell  v.  Gardner,  4  App.  Div.  321 32 

Burke  v.  O'Brien,  115  App.  Div.  574 256 

Burke  v.  Valentine,  52  Barb.  412 ;  6  Alb.  L.  J.  167 48,  49,  346 

Burns  v.  Allen,  89  Hun,  552;  154  N.  Y.  741 102 

Burrill  v.  Boardman,  43  N.  Y.  254 95,  280 

Burrill  v.  Sheil,  2  Barb.  457 248 

Butler  v.  Baudouine,  84  App.  Div.  215 ;  177  N.  Y.  530 32 

Butler  v.  Butler,  Hoffman  Ch.  344;  3 Barb.  Ch.  304.  .45,  47,  50,  54,  71,  211, 

229,  248,  309 

Butterfield,  Matter  of,  133  N.  Y.  473 42,  46,  50,  75,  107,  151,  153,  169, 

170,  290 

Button  v.  Hemmens,  92  App.  Div.  40 .20,  26 

Byrnes  v.  Labagh,  38  Hun,  453.     See  Byrnes  v.  Stilwell. 

Byrnes  v.  Stilwell,  103  N.  Y.  453 86,  88,  248 

C.  W.  Co.  v.  Hodenpyl,  135  N.  Y.  430 82 

Cabbie  v.  Cabbie,  111  App.  Div.  426 272 

Cadell  v.  Palmer,  7  Bligh,  N.  S.  202 180 

Cadyv.S.  W.  W.  Co.,  134  K  Y.  115 97 

Cahill  v.  Russell,  140  N.  Y.  402 149 

Caldwell,  Matter  of,  188  N.  Y.  115 287 

Campbell  v.  Beaumont,  91  N.  Y.  464 175 

Campbell  v.  Foster,  35  N.  Y.  361 268 

Campbell  v.  Rawdon,  18  K  Y.  412 70,  324 

Campbell  v.  Stokes,  142  N.  Y.  23. . .  .23,  67,  91,  94,  105,  166,  167,  247,  248 

Carmichael  v.  Carmichael,  1  Abb.  Ct.  App.  Dec.  309 332,  340 

Carnwright  v.  Gray,  127  N.  Y.  92 82 

Carpenter,  Matter  of,  131  N.  Y.  86 266,  348 

Case  v.  Green,  78  Mich.  540 354 

Casgrain  v.  Hammond,  134  Mich.  419 354 

Catt  v.  Catt,  118  App.  Div.  742 283 


TABLE  OF  CASES.  xxi 

(References  are  to  pages.) 

Central  Trust  Co.  v.  Egleston,  185  N.  Y.  28 67,  290,  309 

Chamberlain  v.  Chamberlain,  43  N.  Y.  424. . .  .280,  285,  348,  349,  350,  351, 

353 

Chamberlain  v.  Taylor,  105  N.  Y.  185 149,  288 

Chanler  v.  N.  Y.  El.  R.  R.  Co.,  34  App.   Div.  305  19,  277 

Chapman,  Matter  of,  133  App.  Div.  337 ;  196  N.  Y.  561 39,  154 

Chapman  v.  Moulton,  8  App.  Div.  64 344 

Charlier,  Matter  of,  22  App.  Div.  71 67 

Chastain  v.  Dickinson,  201  N.  Y.  538 291 

Chester  v.  Jumel,  125  N.  Y.  237 90 

Child  v.  Child,  1  N.  Y.  Leg.  Obs.  182 140 

Chinn  v.  Keith,  4  T.  &  C.  126.     (See  Chism  v.  Keith). 

Chipman  v.  Montgomery,  63  N.  Y.  221 293 

Chism  v.  Keith,  1  Hun,  589 323 

Christie,  Matter  of,  59  Hun,  153;  133  N.  Y.  473 107,  151,  153,  169 

Church  of  Redemption  v.  Grace  Church,  68  N.  Y.  570 281 

Chwatal  v.  Schreiner,  148  N.  Y.  683 244,  309,  310 

City  of  Brooklyn  v.  Seaman.     See  Brooklyn. 
City  of  Owatonna  v.  Rosebrock.     See  Owatonna. 
City  of  Rochester,  Matter  of.     See  Rochester. 

Clancy  v.  O'Gara,  4  Abb.  N.  C.  258 346 

Clark  v.  Cammann,  160  N.  Y.  315 272,  313,  341 

Clark  v.  Clark,  147  N.  Y.  639 102,  144,  266 

Clark  v.  Goodridge,  51  Misc.  140 59,  62,  295 

Clark  v.  Kittenplan,  63  Misc.  122 244 

Clarke,  Matter  of,  59  Hun,  557 ;  128  N.  Y.  658 103 

Clay  v.  Wood,  153  N.  Y.  134 102,  310 

Clemens  v.  Clemens,  60  Barb.  366;  37  N.  Y.  59 291,  293 

Clift  v.  Moses,  116  N.  Y.  144 287,  288 

Close  v.  Farmers'  L.  &  T.  Co.,  195  N.  Y.  92. .  .101,  102,  309,  310,  312,  356 

Clutev.  Bool,  8  Pai.  83 126,  137 

Coann  v.  Culver,  188  X.  Y.  9 149,  287 

Cochrane  v.  Alexander,  56  Misc.  212 131 

Cochrane  v.  Schell,  140  N.  Y.  516 88,  90,  91,  93,  94,  95,  100,  101,  104, 

110,  115,  125,  126,  128,  130,  136,  145,   146,  259,  260,  266,   267,  268,   271, 

291,  309,  310 

Colby  v.  Doty,  158  N.  Y.  323 344 

Cole  v.  Lee,  143  Mich.  267 354 

Cole  v.  Sewell,  4  Dr.  &  Warr.  1 181 

Coleman  v.  Beach.  97  X.  Y.  545 163,  175 

Collins,  Matter  of,  144  N.  Y.  522 126 

( !.  .It  v.  Heard,  10  Hun,  189 175 

Colton  v.  Fox,  6  Hun,  49;  67  N.  Y.  348 41,  67,  68,  291,309 

Columbus  Watch  Co.  v.  Hodenpyl,  135  N.  Y.  430  82 

Comm.  v.  Hartnett,  3  Gray,  450 . .     137 

Congdon  v.  Lee,  3  Edw.  Ch.  304 32 

Conger,  Matter  of,  81  App.  Div.  493 56,  220,  222,  231,  232,  259 


xxii  TABLE  OF  CASES. 

(References  are  to  pages.) 

Conkling  v.  Davies,  14  Abb.  N.  C.  499 59 

Connelly  v.  O'Brien,  166  N.  Y.  406 311,  312,  316 

Connolly  v.  Connolly,  122  App.  Div.  492 33,  106 

Converse  v.  Kellogg,  7  Barb.  590 270 

Cook  v.  Barr,  44  N.  Y.  156 &9 

Cook  v.  Lowry,  95  N.  Y.  103 128,  131,  146,  258,  260,  268,  278 

Cooke  v.  Piatt,  98  N.  Y.  35 101,  107,  110,  149 

Cooksey,  Matter  of,  182  N.  Y.  92 154,  259,  261,  278 

Coolidge,  Matter  of,  85  App.  Div.  295 ;  177  N.  Y.  541 287 

Cooney,  Matter  of,  112  App.  Div.  659;  115  App.  Div.  895  ;  187  N.  Y. 

546 285 

Cooper  v.  Healherington,  65  App.  Div.  561   48 

Corley  v.  McElmeel,  149  N.  Y.  228 25 

Cornell,  Matter  of,  170  N.  Y.  423 267 

Corse  v.  Cbapman,  153  K  Y.  466 60,  64,  67,  69,  86,  87,  144,  149,  311 

Corse  v.  Corse,  144  N.  Y.  569 67,  71,  118,  125 

Coster  v.  Lorillard,  14  Wend.  265.. ..35,  36,  70,  75,  126,  137,  291,  323,  328 

Coston  v.  Coston,  118  App.  Div.  1 39,  48,  49,  50 

Cottman  v.  Grace,  112  N.  Y.  299. 279,  280,  287,  309 

Cotton  v.  Berkelman,  142  N.  T.  160 308 

Cowen  v.  Rinaldo,  82  Hun,  479 42,  120,  122,  126,  129,  293 

Craig  v.  Craig,  3  Barb.  Ch.  76 24,  128,  129 

Craig  v.  Hone,  2  Edw.  Ch.  554 57,  137 

Craig  v.  Wells,  11  N.  Y.  315 78,  79 

Crain  v.  Wright,  114  K  Y.  307 175 

Cramer,  Matter  of,  170  N.  Y.  271 86,  87,  88,  344 

Crane,  Matter  of,  164  N.  Y.  71 248,  312,  336,  340,  341,  342,  343 

Crittenden  v.  Fairchild,  41  N.  Y.  289 80,  149 

Cromek  v.  Lumb,  2  Y.  &  C.  C.  C.  565 304 

Cromwell  v.  Cromwell,  2  Edw.  Ch.  495 ;  3  Ch.  Sentinel  7 71 

Crooke  v.  County  of  Kings,  97  N.  Y.  421. . .  .27,  35,  36,  43,  45,  59,  71,  73, 

106,  111,  134,  141,  142,  175,  309 
Crooke  v.  Prince,  decided  with  Crook  v.  County  of  Kings. 

Cross  v.  U.  S.  Trust  Co..  131  N.  Y.  330 349,  350,  351,  353 

Crossman,  Matter  of,  113  N.  Y.  503 259,  268 

Crozier  v.  Bray,  120  N.  Y.  366 175,  311 

Cruger  v.  Douglas,  4  Edw.  Ch.  433 ;  5  Barb.  225 100 

Cruger  v.  Jones,  18  Barb.  467 109,  111 

Cruikshank  v.  Home  for  the  Friendless,  113  N.  Y.  337. .„ .  .19,  21,  42,  280 

Culross  v.  Gibbons,  130  K  Y.  447 25,  107,  291 

Cunningham  v.  Davenport,  147  N.  Y.  43 267 

Curtis,  Matter  of,  142  N.  Y.  219 89,  90,  91 

Curtis  v.  Fowler,  66  Mich.  698 91 

Curtis  v.  Leavitt,  15  N.  Y.  9 32 

Curtis  v.  Lukin,  5  Beav.  147 77 

Curtis  v.  Moore,  152  N.  Y.  159 102 

Curtis  v.  Murphy,  129  N.  Y.  645  91 


TABLE  OF  CASES.  xxiii 

(References  are  to  pages.) 

Curtiss  v.  Ayrault,  47  N.  Y.  73 97 

Cushman  v.  Cushman,  116  App.  Div.  768;  191  N.  Y.  505  ...28,  336,  340 

Cuskman  v.  Horton,  59  N.  Y.  149 324 

Cussack  v.  Tweedy,  126  N.  Y.  81 71,  149,  156 

Cuthbert  v.  Chauvet,  136  N.  Y.  326. 26 

Cutter  v.  Doughty,  23  Wend.  513,  rev'd  7  Hill,  305 843 

Cutting  v.  Cutting,  86  N.  Y.  522 4,  147,  149,  175,  258,  260,  278 

Dammert  v.  Osborn,  140  N.  Y.  30;  141  N.  Y.  564 283,  348,  349,  350, 

351,  352,  853 
Dana  v.  Murray,  122  N.  Y.  604  ...  .69,  73,  75,  94,  149,  161,  162,  163,  167, 

172,  203,  222,  223,  247,  290,  305,  306,  313 

Danforth  v.  Oshkosk,  119  Wis.  262  355,  356 

Darling  v.  Rogers,  22  Wend.  483 5,  291,  292 

Darrow  v.  Calkins,  154  N.  Y.  503 102 

Davies  v.  Davies,  129  App.  Div.  379 ;  197  K  Y.  598 244 

Davis,  Matter  of,  149  N.  Y.  539 91 

Davis  v.  Davis,  75  N.  Y.  221 138 

Davis  v.  Davis,  118  N.  Y.  411 344 

Davis  v.  Kerr,  30  App.  Div.  322  51 

Dean  v.  Mumford,  102  Mich.  510  354,  355 

Dearing  v.  McKimmon  D.  &  H.  Co.,  165  N.  Y.  78 348 

DeBaraute  v.  Gott,  6  Barb.  492 17,  57 

Deegan  v.  Wade,  144  N.  Y.  573 19,  78,  147,  175,  277 

Defreese  v.  Lake,  109  Mich.  415   354 

DeGrauw  v.  Long  Island  El.  R.  Co.,  43  App.  Div.  502;  163  N.  Y. 

597 138 

DeGraw  v.  Clason,  11  Pai.  136 32,  126 

DeKay  v.  Irving,  5  Den.  646 41,  46,  59,  100,  101,  296,  301 

Delafield  v.  Barlow,  107  N.  Y.  535 288 

Delafield  v.  Shipman,  103  N.  Y.  463  71,  146,  162,  231,  248,  339,  341, 

346 

Delaney  v.  McConnick,  88  N.  Y.  174 94,  162,  248,  341,  345,  347 

Delaney  v.  Valentine,  154  N.  Y.  692 32 

Delano,  Matter  of,  176  N.  Y.  486 154 

Dempsey  v.  Tylee,  3  Duer.  73 17 

Denike  v.  Harris,  84  N.  Y.  89 100 

Denison  v.  Denison,  96  App.  Div.  418;  183  N.  Y.  505 72,  91,  93,  339 

Denison  v.  Denison,  185  N.  Y.  438 67,  309 

Denton,  Matter  of,  137  N.  Y.  428 344 

Denton,  Matter  of,  102  N.  Y.  200 265 

DePeyster  v.  Beekman,  55  How.  Pr.  90 59 

DePeyster  v.  Clendining,  8  Pai.  295 ;  26  Wend.  21 140,  291 

DePeyster  v.  Michael.  6  N.  Y.  467 78,  80,  96 

DeReycke,  Matter  of,  99  App.  Div.  596 102 

Despard  v.  Churchill,  53  X.  Y.    192 351,  352,  353 

Devoe  v.  Lutz,  133  App.  Div.  356 266 


xxiv  TABLE  OF  CASES. 

(References  are  to  pages.) 

Dewey,  Matter  of,  153  N.  Y.  63 101,  127 

Dewitt,  Matter  of,  113  App.  Div.  790;  188  N.  Y.  567. . .  .42,  285,  290,  312 

DeWolf  v.  Lawson,  61  Wis.  469 41,  355,  356 

Dexter  v.  Watson,  54  Misc.  484 59,  129 

Dey  Ermand,  Matter  of,  24  Hun,  1 131,  146 

Dickie  v.  VanVleck,  5  Redf.  284 67 

Dillaye  v.  Greenough,  45  K  Y.  438 101 

Dillenbeck  v.  Dillenbeck,  134  App.  Div.  720 19 

Dimmick  v.  Patterson,  142  X.  Y.  322 312,  342 

Dippel,  Matter  of,  71  App.  Div.  598 49,  50 

Disney,  Matter  of,  190  N.  Y.  128 344 

Dittniar  v.  Gould,  60  App.  Div.  94  32 

Doane  v.  Mercantile  Trust  Co.,  160  X.  Y.  494 85,  106,  267,  287 

Dodge  v.  Stevens,  105  N.  Y.  585 91 

Dodge  v.  Williams,  46  Wis.  70 280,  355,  356 

Dodsworth  v.  Dam,  38  Misc.  684 41 

Doe  dem.  Long  v.  Prigg,  8  B.  &  C.  231 343 

Donaldson  v.  Am.  Tract  Society,  1  T.  &  C.  Addenda,  15 41 

Donovan  v.  VanDeMark,  78  N.  Y.  244 101 

Dosclier  v.  Wyckoff,  132  App.  Div.  139 89,  111 

Doubleday  v.  Newton,  27  Barb.  431 309 

Dougherty  v.  Thompson,  167  N.  Y.  472. . .  .90,  93,  166,  311,  312,  339,  341, 

342,  346 

Douglas  v.  Cruger,  80  N.  Y.  15 25,  26,  32,  43,  99,  104,  105,  111,  113, 

267 

Douglass  v.  Douglass,  70  Misc  412 17 

Downing  v.  Birney,  117  Mich.  675 354 

Downing  v.  Marshall,  1  Abb.  Ct.  App.  Dec.  524 288 

Downing  v.  Marshall,  23  N.  Y.  366 5,  45,  101,  279,  280 

Dows,  Matter  of,  167  1ST.  Y.  227 63,  154 

Drake  v.  Lawrence,  19  Hun,  112 324 

Drake  v.  Paige,  127  N.  Y.  562 149 

Drake  v.  Pell,  4  Edw.  Ch.  251 49,  95,  341 

Draper  v.  Palmer,  27  State  Rep.  510 132 

Dresser  v.  Travis,  39  Misc.  358;  87  App.  Div.  632 41,  120,  129,  291 

Driscoll  v.  Hewlett,  198  N.  Y.  297 285 

DuBois  v.  Ray,  35  K  Y.  162 86,  309,  310,  346 

Duclos  v.  Benner,  136  N.  Y.  560 71 

Duke  of  Cumberland  v.  Graves,  9  Barb.  595 17 

Duncklee  v.  Butler,  38  App.  Div.  99  69,  307 

Dungannon  v.  Smith,  12  CI.  &  F.  546 39 

I  >unham  v.  Deraismes,  165  N.  Y.  65 126,  144 

Dupre  v.  Thompson,  4  Barb.  279 ;  8  Barb.  538 291,  292 

Durand,  Matter  of,  194  N.  Y.  477 63,  280,  285 

Durfee  v.  Pomeroy,  154  N.  Y.  583 51,  67,  71,  76,  156 

Duvall  v.  English  E.  L.  Church,  53  N.  Y.  500 107,  231,  247 


TABLE  OF  CASES.  XXV 

(References  are  to  pages.) 

Dwight  v.  Lawrence,  111  App.  Div.  616 23 

Dyett  v.  C.  T.  Co.,  140  N.  Y.  54 104 

East  Norway  Lake  Church  v.  Froislie,  37  Minn.  447 355 

Ebling  v.  Dreyer,  149  N.  Y.  460 23 

Edson  v.  Bartow,  154  K  Y.  199 102 

Eells  v.  Lynch,  8  Bosw.  465  39,  49 

Eggleston  v.  Swartz,  129  N.  W.  Rep.  48 355 

Eldridge,  Matter  of,  29  Misc.  734 ;  62  Supp.  1026 228 

Ellison  v.  Miller,  11  Barb.  332 140 

Embree,  Matter  of,  9  App.  Div.  602 ;  154  N.  Y.  778 248,  343 

Embury  v.  Sheldon,  68  N.  Y.  227 105,  106,  145,  311,  344 

Emmons  v.  Cairns,  3  Barb.  243 '. . .    17,  18,  60,  256 

Endress  v.  Willey,  122  App.  Div.  110 ;  197  N.  Y.  541 129 

Erwin  v.  Loper,  43  N.  Y.  521 288 

Everett  v.  Peyton,  167  N.  Y.  117 25,  32 

Everitt  v.  Everitt,  29  N.  Y.  39  . .  .17,  18,  24,  56,  64,  67,  68,  69,  70,  75,  76, 
102,  111,  150,  151,  152,  156,  235,  261,  266,  267,  287,  311,  341,  342 

Evers  v.  Challis,  18  Q.  B.  224;  7  H.  L.  C.  531 304 

Ewen,  Matter  of,  7  Misc.  619 306 

Fadness  v.  Braunborg,  73  Wis.  257 356 

Faile,  Matter  of,  44  Misc.  619 42 

Fairchild  v.  Edson,  154  N.  Y.  199 41,  279,  281,  285 

Fargo  v.  Squiers,  154  N.  Y.  250 38,  40,  102,  149,  156,  164,  172,  173, 

174,  208,  258,  259,  261,  278 

Farleigh  v.  Cadman,  159  N.  Y.  169 267 

Farmers'  Loan  &  Trust  Co.,  Matter  of,  65  Misc.  418 35 

Farmers'  Loan  &  Trust  Co.  v.   Bostwick,  190  N.  Y.   569,  rev'g  120 

App.  Div.  271 63 

Farmers'  Loan  &  Trust  Co.  v.  Cummings,  108  K  Y.  Supp.  882 40 

Farmers'  Loan  &  Trust  Co.  v.  Kip,  192  N.  Y.  266 4,  32,  35,  36,  63, 

111,  149,  164,  172,  175 

Farmers'  Loan  &  Trust  Co.  v.  Shaw,  127  App.  Div.  656 285 

Farrand  v.  Petit,  84  Mich.  671. 41,  354 

Farrar  v.  McCue,  89  N.  Y.  139 '    17 

Fan-ell,  Matter  of,  133  App.  Div.  97;  198  N.  Y.  579 108 

Felter  v.  Ackerson,  35  App.  Div.  282 43 

Fenton  v.  Fenton,  35  Misc.  479 71 

Ferris  v.  Gibson,  4  Edw.  Ch.  707 343 

Ferry  v.  Sampson,  112  N.  Y.  415 310 

Field  v.  Field's  Ex'rs,  4  Sandf.  Ch.  528 48,  291 

Finch  v.  Wilkes,  17  Misc.  428 60,  61 

Finley  v.  Bent,  95  N.  Y.  364 346 

First  Nat'l  Bank  v.  Nat.  Broadway  Bank,  156  N.  Y.  459 350 

First  Presb.  Soc,  Matter  of,  106  N.  Y.  251 280 

Fisher,  Matter  of,  See  Mead,  Matter  of 40 


xxvi  TABLE  OF  CASES. 

(References  are  to  pages.) 

Fisher  v.  Banta,  66  N.  Y.  468 287,  288 

Fisher  v.  Hall,  41  K  Y.  416 102 

Fisher  v.  Langlotz,  100  N.  Y.  Supp.  578 64 

Fit/.Gerald  v.  City  of  Big  Rapids,  123  Mich.  281 354,  355 

Fitzgerald  v.  Topping,  48  N.  Y.  438 109,  111,  267 

Flaherty  v.  Adelman,  138  Wis.  120 355 

Floyd  v.  Carow,  88  N.  Y.  560 85,  209 

Floyd  v.  Smith,  140  N.  Y.  337 162 

Foote  v.  Bruggerhof,  66  Hun,  406 67,  76,  156 

Foote  v.  Bryant,  47  K  Y.  544 281 

Ford  v.  Ford,  70  Wis.  19 355 

Ford  v.  Ford,  80  Mich.  42 348,  354 

Forster  v.  Winfield,  142  K  Y.  327 102 

Forsyth  v.  Rathbone,  34  Barb.  388 52,  94,  131,  309 

Foster  v.  Stevens,  146  Mich.  131 354 

Fountain  v.  Ravenel,  17  How.  (U.  S.)  369 281 

Fowler  v.  Coates,  201  K  Y.  257 96,  209 

Fowler  v.  Depau,  26  Barb.  224  53,  294,  296 

Fowler  v.  Ingersoll,  127  N.  Y.  472 17,  23,  26,  41,  67,  69,  208,  234,  343 

Fox,  Matter  of,  52  N.  Y.  530 280 

Fralick  v.  Lyford,  107  App.  Div.  543 ;  187  K  Y.  524 285 

Franklin  v.  Minertzhagen,  39  App.  Div.  555 59,  231 

Fraserv.  Trustees,  124  N.'Y.  479. 288 

Frazer,  Matter  of,  92  N.  Y.  239 292 

Frazer  v.  Hoguet,  65  App.  Div.  192 , 60,  72,  111,  141 

Freeborn  v.  Wagner.  2  Abb.  Ct.  App.  Dec.  175  175 

French  v.  Carhart,  1  N.  Y.  96 308 

Fuller,  Will  of,  75  Wis.  431 279,  356 


Gage  v.  Gage,  43  Hun,  501 ;  112  N.  Y.  667 68,  70 

Galway  v.  Brice,  10  Misc.  255 39,  76 

Gano  v.  McCann,  56  How.  Pr.  337 102 

Gantert,  Matter  of,  136  N.  Y.  106 73,  149 

Gardner,  Matter  of,  140  N.  Y.  122 102,  175,  213,  342 

Garland  v.  Garland,  35  Misc.  147 291 

Garnsey  v.  Mundy,  24  N.  J.  Eq.  243  59 

Garvey  v.  McDevitt,  72  N.  Y.  556 17,  18,  44,  110,  111,  149,  157,  158, 

160,  163,  273 
Gehrig,  Matter  of,  44  Alb.  L.  J.  108.     (See  Huss,  Matter  of) 

Genet  v.  Beekman,  45  Barb.  382 32 

Genet  v.  Hunt,  113  N.  Y.  158 17,  23,  26,  31,  63,  94,  102,  105,  163,  164, 

172,  173,  174,  213,  231,  259,  260,  266,  267,  268,  296,  301 

Geofroy  v.  Riggs,  133  U.  S.  258 17 

German  Land  Ass'n  v.  Scholler,  10  Minn.  331 356 

Gibert  v.  Peteler,  38  N.  Y.  165 96 


TABLE  OF  CASES.  xxvii 

(References  are  to  pages.) 

Gibson  v.  Walker,  20  N.  Y.  476 344 

Gilbert  v.  Taylor,  148  N.  Y.  298 127 

Gilliam  v.  Guaranty  Trust  Co.,  186  N.  Y.  127 91,  248,  339 

Gilman  v.  Gilman,  111  K  Y.  265 292 

Gilman  v.  Healy,  1  Dem.  404 129,  131,  132 

Gilman  v.  McArdle,  99  K  Y.  4.51 32,  102,  266,  267 

Gilman  v.  Reddington,  24  N.  Y.  9  . .  .45,  71,  72,  76,  86,  105,  131,  166,  167, 

232,  254,  260,  266,  267,  268,  271,  342 

Giraud  v.  Giraud,  58  How.  Pr.  175 41 

Goebel  v.  Wolf,  113  N.  Y.  405 71,  88,  105,  131,  132,  162,  166,  247, 

341,  342 

Goodell  v.  Hibbard,  32  Mich.  47  345,  354 

Goodrich  v.  Milwaukee,  24  Wis.  422 355 

Goodwin  v.  Coddington,  154  N.  Y.  283,    310,  311,  312 

Gorden,  Matter  of,  172  N.  Y.  25 292,  312 

Gosling  v.  Gosling,  Johns.  (Eng.)  265 77 

Gott  v.  Cook,  7  Pai.  521 ;  24  Wend.  641 48,  57,  86,  126,  137,  268 

Gould  v.  Rutberf urd,  6  Misc.  72 ;  79  Hun,  280 146 

Gould  v.  Taylor  Orphan  Asylum,  46  Wis.  106 356 

Gourley  v.  Campbell,  66  N.  Y.  169 288 

Govin  v.  de  Miranda,  140  N.  Y.  474;  662 100 

Graff  v.  Bonnett,  31  N.  Y.  9 32,  258,  260,  268 

Graham  v.  Fountain,  2  K  Y.  Supp.  598 94 

Graham  v.  Graham,  49  Misc.  4 39,  222,  307 

Grant  v.  Grant,  3  Y.  &  C.  171  77 

Graves,  Matter  of,  171  N.  Y.  40 285 

Graves  v.  Deterling,  120  N.  Y.  447 89 

Green,  Matter  of,  153  N.  Y.  223 346 

Greene  v.  Greene,  125  N.  Y.  506 78,  79,  100,  108,  293 

Greenland  v.  Waddell,  116  N.  Y.  234. . .  .17,  44,  50,  55,  101,  149.  157,  203, 

236,  237,  248,  251,  254,  259,  263,  272,  287,  288,  341 

Greyston  v.  Clark,  41  Hun,  125 175 

Griffen  v.  Ford,  1  Bosw.   123 39,  126 

Griffin,  Matter  of,  167  N.  Y.  71 280,  281,  283,  284 

Griffin  v.  Shepard,  124  N.  Y.  70 88,  90,  93,  220,  333,  339 

Grout  v.  Van  Schoonhoven,  1  Sandf.  Ch.  336 291 

Guental  v.  Guental,  113  App.  Di v.  310 42,  102,  108 

Guernsey  v.  Guernsey,  36  K  Y.  267 344 

Guernsey  v.  Van  Riper,  126  App.  Div.  368 94 

Haendle  v.  Stewart,  84  App.  Div.  275 108 

Hafner  v.  Hafner,  62  App.  Div.  316;  171  N.  Y.  633 120,  129,  290 

Hagemeyer  v.  Saulpaugh,  97  App.  Div.  535 21,  48,  160,  277 

Hagerty  v.  Hagerty,  9  Hun,   175 101,  102,  266,  267 

I  [a  ggerty,  Matter  of,  128  App.  Div.  479 ;  194  N.  Y.  550 154 

Hakes  v.  Peck,  30  How.  Pr.  104 138 

Hale  v.  Hale,  3  Ch.  D.  643 39 


xxviii  TABLE  OF  CASES. 

(References  are  to  pages.) 

Haley  v.  Sheridan,  190  N.  Y.  331 17 

Hall  v.  Hall,  81  N.  Y.  130 17 

Hall  v.  La  France  Fire  Engine  Co.,  158  X.  Y.  570 335,  340 

Hallett  v.  Thompson,  5  Pai.  583 32 

Halsey   v.    Jewett   Dramatic   Co.,    114  App.  Div.   420;  rev'd   190 

N.  Y.  231 133 

Ham  v.  Van  Orden,  84  N.  Y.  257  87,  91,  260,  262,  265 

Hannan  v.  Osborn,  4  Pai.  336 57,  88,  91 

Harbeck,  Matter  of,  161  X.  Y.  211 172,  173 

Hardenbergh  v.  McCarthy,  130  App.  Div.  538 64,  307 

Harrington,  Will  of.  142  Wis.  447 355 

Harrington  v.  Abberton,  115  App.  Div.  177 108 

Harrington  v.  Pier,  105  Wis.  485 356 

Harris  v.  Am.  Bible  Soc,  2  Abb.  Ct.  App.  Dec.  316 285 

Harris  v.  Clark,  7  N.  Y.  242 21,  97,  128,  131,  290,  293 

Harris  v.  Fly,  7  Pai.  221 287 

Harris  v   Strodl,  132  N.  Y.  392 22,  168 

Harrison  v.  Harrison,  36  K  Y.  543 71,  72,  143,  291,  292 

Hart,  Matter  of,  61  App.  Div.  587;  168  N.  Y.  640 63,  96 

Harteau,  Matter  of,  125  App.  Div.  710;  196  N.  Y.  513 129,  146,  291 

Hartung  v.  Witte,  59  Wis.   285 80,  355 

Harvey  v.  Brisbin,  50  Hun,  376 ;  143  N.  Y.  151 44,  144 

Hasbrouck  v.  Knoblauch,  130  App.  Div.  378 175 

Hascall  v.  King,  162  K  Y.  134.  .104,  110,  115,  120,  121,  122, 124,  125,  126, 

129,  291 

Hatch  v.  Bassett,  52  N.  Y.  359 287,  346,  347 

Hatfield  v.  Sneden,  54  N.  Y.  280 220 

Hathaway  v.  Hathaway,  37  N.  Y.  265 101 

Hauenstein  v.  Lynham,  100  U.  S.  483 17 

Haug  v.  Schumacher,  166  N.  Y.  506.  .41,  101,  129,  130,  131,  162,  169,  170, 

248,  256,  291,  309,  312,  313,  342,  343 
Haux  v.  Dry  Dock  Savings  Inst.,  2  App.  Div.  165;  154  N.  Y.  736.. .     267 

Haviland  v.  Willets,  141  N.  Y.  35  25 

Hawley  v.  James,  5  Pai.  318;  7  Pai.  213;  16  Wend.  61. . .  .4,  5,  15,  21,  22, 
39,  40,  42,  43,  46,  50,  55,  57,  73,  75,  76,  86,  96,  101,  112,  121,  122,  126^ 

129,  137,  156,  170,  211,  229,  291 

Haxtun  v.  Corse,  2  Barb.  Ch.  506 45,  71,  100,  130 

Hayden,  Matter  of,  77  Hun,  219 128 

Hayden  v.  Sugden,  48  Misc.  108 17,  21 

Haynes  v.  Sherman,  117  N.  Y.  433 19,  21,  22,  48,  57,  92,  94,  175,  261, 

266,  290 

Heard  v.  Horton,  1  Den.  165 324 

Heath  v.  Hewitt,  127  N.  Y.  166 308,  310,  324 

Heermans  v.  Burt,  78  N.  Y.  259 100,  107,  110,  144 

Heermans  v.  Robertson,  64  N.  Y.  332 19,  21,  102,  107 

Hegeman  v.  Moon,  131  N.  Y.  462 82 

Heiss  v.  Murphey,  40  Wis.  276 356 


TABLE  OF  CASES.  xxix 

(References  are  to  pages.) 

Helck  v.  Reinheimer,  105  N.  Y.  470 86,  102 

Henderson  v.  Henderson,  113  N.  Y.  1 19,  20,  22,  40,  41,  57,  76,  86,  88, 

110,  149,  156,  162,  203,  208,  230,  242,  243,  245,  246,  248,  249,  273,  277, 

291,  345,  346 

Henderson  v.  Merritt,  10  App.  Div.  397 311 

Hendricks  v.  Hendricks,  3  App.  Div.  604;  154  K  Y.  751 129 

Hennessy  v.  Patterson,  85  N.  Y.  91 87,  91,  331,  332,  333,  334,  335,  337, 

340 

Herrick,  Matter  of,  32  State  Rep.  1032 291 

Herriot  v.  Prime,  155  N.  T.  5 86,  292 

Hersee  v.  Simpson,  154  N.  Y.  496  94,  311 

llerzig  v.  Horzig,  140  App.  Div.  514 120 

Herzog  v.  Title  Guarantee  &  Trust  Co.,  177  N.  Y.  86.  .42,  57,  94,  111,  125, 

139,  145,  248,  290,  303,  309,  312,  341 

Hetzel  v.  Barber,  69  N.  Y.  1 44,  78,  157,  168,  169,  288 

Hickok  v.  Bunting,  67  App.  Div.  560 101 

Higgins  v.  Downs,  101  App.  Div.  119 ...27,  101 

Hill  v.  Miller,  3  Pai.  254   97 

Hillen  v.  Iselin,  144  N.  Y.  365 73,  95,  163,  164,  169,  172,  308,  310,  339 

Hillyer  v.  Vandewater,  24  N.  E.  Rep.  999;  121  N.  Y.  681 71 

Hilton  v.  Hilton,  L.  R.  14  Eq.  468 77 

Hirscn  v.  Auer,  146  N.  Y.  13 266 

Ilobson  v.  Hale,  95  N.  Y.  588 21,  22,  41,  94,  131,  248,  287,  288,  348 

Hockley  v.  Mawbey,  1  Ves.  150 163 

Hoey  v.  Kenny,  25  Barb.  396 17 

Hoffman,  Matter  of,  65  Misc.  126;  140  App.  Div.  122;  201  N.  Y.  247, 

39,  64,  70,  248,  295,  308,  310,  312 

Hoffman,  Matter  of,  143  N.  Y.  327 91 

Holden  v.  Rush,  119  App.  Div.  716 79,  80 

Holland  v.  Alcock,  108  N.  Y.  312 279,  280,  281 

Hollis  v.  Drew  Theo.  Sem.,  95  N.  Y.  166 285 

Holly  v.  Hirsch,  135  N.  Y.  590 100,  101,  308 

Holmes  v.  Mead,  52  N.  Y.  332 279,  200,  291,  293 

Holmes  v.  Walter,  118  Wis.  409 355 

Hone's  Ex'rs  v.  Van  Schaick,  7  Pai.  221;  20  Wend.  564. . .  .41,  07,  73,  137, 

102,  103,  170,  208,  229,  254,  263 

Hood  v.  Hood,  85  N.  Y.  561 287 

Hooker  v.  Hooker,  41  App.  Div.  235;  166  N.  Y.  150 15,   140,  266,  292 

Hope  v.  Brewer,  136  N.  Y.  126 19,  273,  277,  287,  349,  350,  351,  353 

Hopkins  v.  Kent,  145  N.  Y.  363 43,  101,  106 

Hoppock  v.  Tucker,  59  N.  Y.  203 310 

Horndorf  v.  Horndorf,  13  Misc.  343 76 

I Iorner  v.  Cbieago,  etc.,  Co. .  38  Wis.  165 96 

Ilorstman  v.  Flege.  172  N.  Y.  381 126,  292,  312 

Horton  v.  Cantwell,  108  N.  Y.  255 129,  267 

Hoskin  v.  Long  Island  Loan  &  Trust  Co.,  139  App.  Div.  258 268 

House  v.  Jackson,  50  N.  Y.  161 ...  323,  326 


XXX  TABLE  OF  CASES. 

(References  are  to  pages.) 

House  v.  McCormick,  57  N.  Y.  310 323 

Howard  v.  Leonard,  3  App.  Di v.  277 32 

Howard  v.  Moot,  64  K  Y.  262 105 

Howland,  Matter  of,  75  App.  Div.  207 55,  56,  203,  238,  254,  263,  303 

Howland  v.  Clendening,  134  N.  Y.  305 33,  310 

Hoyt,  Matter  of,  71  Hun,  13 120,  129 

.Hoyt,  Matter  of,  32  State  Rep.  787 131 

Hoyt,  Matter  of,  116  App.  Div.  217;  189  N.  Y.  511 146 

Hubbard  v.  Housley,  43  App.  Div.  129;  160  K  Y.  688 100,  107 

Hughes  v.  Hughes,  91  Wis.  138 355 

Hughes  v.  Mackin,  16  App.  Div.  291 39,  43 

Hull  v.  Hull,  24  N.  Y.  647 128,  131 

Hull  v.  Osborn,  151  Mich.  8 354 

Hume  v.  Randall,  141  N.  Y.  499 78,  147,  175 

Hunter  v.  Hunter,  17  Barb.  25 17,  22,  59,  126 

Hunter  v.  Hunter,  31  Barb.  334 67 

Hurlbut,  Matter  of,  51  Misc.  263 60,233 

Huss,  Matter  of,  126  N.  Y.  537 280,  349,  350,  351 

Hutchins  v.  VanVechten.  140  N.  Y.  115 99 

Hutton  v.  Benkard,  92  N.  Y.  295 4,  259,  260,  261,  278 

Illensworth  v.  Illensworth,  110  App.  Div.  399 267 

Ingersoll,  Matter  of,  131  N.  Y.  573 102,  281 

Jackson  v.  Littel,  56  N.  Yr.  108 323 

Jackson  v.  Sheridan,  50  N.  Y.  660 323 

Jacobs  v.  Morrison,  136  N.  Yr.  101 100 

Jacobs'  Will,  In  re,  29  Beav.  402 77 

Jacoby  v.  Jacoby,  188  N.  Y.  124 46,  47,  49,  50,  53,  102,  248 

James  v.  Beasley,  14  Hun,  520 49,  291 

Jansen  v.  Cairns,  3  Barb.  Ch.  350 251 

Jeefers  v.  Lampson,  10  Oh.  St.  101 314 

Jenkins,  Matter  of,  132  App.  Div.  339 120,  129,  291 

Jenkins  v.  Fahey,  73  N.  Y.  355 94 

Jenkins  v.  Freyer,  4  Pai.  47 48 

Jennings  v.  Conboy,  73  N.  Y.  230 4 

Jennings  v.  Jennings,  7  N.  Y.  547 41,  50,  54,  291 

Jessup  v.  Pringle  Memorial  Home,  27  Misc.  427 ;  47  App.  Div.  622 . .     280 

Jewett  v.  Schmidt,  108  App.  Div.  322 ;  184  N.  Y.  608 25 

Johnson  v.  Brasington,  156  N.  Y.  181 310,  313 

Johnson  v.  Cornwall,  26  Hun,  499 ;  91  N.  Y.  660 126 

Johnston  v.  Hughes,  187  N.  Y.  446 102,  266,  284 

Johnston  v.  Spicer,  107  N.  Y.  185 99 

Jones  v.  Jones,  66  Wis.  310 175 

Jones  v.  Kelly,  170  N.  Y.  401 285,  288 

Josselyn  v.  Josselyn,  9  Sim.  63 77 


TABLE  OF  CASES.  xxxi 

(References  are  to  pages.) 

Kahn  v.  Tierney,  135  App.  Div.  897 ;  201  N.  Y.  516 59,  111,  139 

Kalish  v.  Kalish,  166  N.  Y.  368. . .  .15,  41,  111,  131,  140,  235,  291,  292,  293 

Kane  v.  Gott,  24  Wend.  641 75,  98,  287,  291 

Kaupper,  Matter  of,  141  App.  Div.  54 ;  201  N.  Y.  (Mem.)  70 

Kavanaugh  v.  Watt,  143  Wis.  90 355,  356 

Keenan  v.  Keenau,  122  App.  Div.  435 48,  59,  231 

Kelemen,  Matter  of,  126  N.  Y.  73 102 

Kelley  v.  Hogan,  71  App.  Div.  343 175 

Kelly  v.  Hovey,  35  App.  Div.  273 283 

Kelly  v.  Kelly,  61  N.  Y.  47 343,  344 

Kelso  v.  Lorillard,  85  N.  Y.  177 86,  88,  91,  296,  301,  312,  344 

Kene  v.  Hill,  102  App.  Div.  370 32 

Kennedy  v.  Hoy,  105  N.  Y.  134 291 

Kent  v.  Church  of  St.  Michael,  136  N.  Y.  10 23,  86,  88 

Kent  v.  Kent,  99  App.  Div.  112 309 

Kenyon  v.  See,  94  N.  Y.  563 213 

Keogh,  Matter  of,  112  App.  Div.  414;  186  N.  Y.  544 76,  129,  130,  132 

Keogh,  Matter  of,  126  App.  Div.  285;  193  N.  Y.  603 88,  244 

Kernochan  v.  Marshall,  165  N.  Y.  472 58,  60,  86,  101,  104,  105,  231 

308,  311 

Kerr  v.  Dougherty,  79  N.  Y.  327 285 

Kerr  v.  Moon,  9  Wheat,  565 348 

Kessler  v.  Friede,  29  Misc.  187 60 

Keyser  v.  Mead,  53  Misc.  114 277 

Kiah  v.  Grenier,  56  N.  Y.  220 100,  102,  296,  301 

Killam  v.  Allen,  52  Barb.  605 41,  102,  126,  291 

Kilpatrick  v.  Barron,  54  Hun,  322;  125  N.  Y.  751 23,  94,  157,  162,  265 

Kilpatrick  v.  Johnson,  15  N.  Y.  322 130,  268,  291 

Kilroy  v.  Wood,  42  Hun,  636 32 

Kimberly,  Matter  of ,  150  N.  Y.  90 70,  248,  259 

King,  Matter  of,  200  N.  Y.  189 248 

King  v.  Irving,  103  App.  Div.  420 32 

King  v.  Rundle,  15  Barb.  139 131 

King  v.  Whaley,  59  Barb.  71 235 

Kingsbury  v.  Brandegee,  113  App.  Div.  606 284 

Kinkele  v.  Wilson,  151  N.  Y.  269 126,  310 

Kinnier  v.  Rogers,  42  N.  Y.  531 80,  147,  149 

Kip  v.  Hirsch,  103  K  Y.  565 43 

Kirby,  Matter  of,  113  App.  Div.  705 Ill,  112 

Kirchner  v .  Kirchner,  71  Misc.  57 292 

Kirk  v.  Kirk,  12  N.  Y.  Supp.  326;  137  N.  Y.  510 23,  59,  101 

Kirsch  v.  Tozier,  143  N.  Y.  390 100 

Kissam  v.  Dierkes,  49  N.  Y.  602 27,  28 

Knowlton  v.  Atkins,  134  N.  Y.  313 89,  91,  93,  105,  166,  167,  247,  312 

Knox  v.  Jones,  47  N.  Y.  389.  .57,  67,  203,  232,  233,  237,  260,  290,  291,  348 
Knox  v.  Metropolitan  El.  Ry.  Co.,  58  Hun,  517;  128  N.  Y.  625. . . .     107, 

231,  233 


xxxii  TABLE  OF  CASES. 

(References  are  to  pages.) 

Konvalinka  v.  Schlegel,  104  K  Y.  125 292 

Kopmeier,  In  re,  113  Wis.  233 355 

La  Chapelle  v.  Burpee,  69  Hun,  436 24,  97 

LaFarge  v.  Brown,  31  App.  Div.  542 41,  232,  293 

Lahey  v.  Kortright,  132  K  Y.  450 104,  144,  149,  231 

Lake  v.  Ascher,  152  N.  Y.  684 324 

Lally,  Matter  of,  136  App.  Div.  781 ;  198  N.  Y.  608 42,  47,  49,  50, 

140,  256 

Lamb  v.  Lamb,  131  K  Y.  227 310,  312 

L'Amouieaux  v.  Van  Rensselaer,  1  Barb.  Ch.  34 Ill 

Lampson,  Matter  of,  161  N.  Y.  511 285 

Lane  v.  Albertson,  78  App.  Div.  605 157,  158,  168 

Lane  v.  Brown,  20  Hun,  382 70 

Lang  v.  Ropke,  5  Sandf.  (S.  C.)  363 39,  47,  126 

Lang  v.  Wilbraham,  2  Duer,  171 39 

Langdon,  Matter  of,  153  N.  Y.  6 154 

Langley  v.  Westchester  Trust  Co. ,  180  N.  Y.  326 345 

Lansing,  Matter  of,  182  N.  Y.  238 91,  154 

Lapham,  Matter  of,  37  Hun,  15 67,  70 

Lawrence  v.  Bayard,  7  Pai.  70 323,  324 

Lawton  v.  Corlies,  127  K  Y.  100 310 

Leach  v.  Godwin,  198  K  Y.  35 67 

Leake  v.  Robinson,  2  Meri.  363 341 

Leask,  Matter  of,  197  N.  Y.  193 208 

Leavitt  v.  Wolcott,  95  N.  Y.  212;  (see  63  How.  Pr.  51) 25,  41,  68 

Lee  v.  Lee,  2  How.  Pr.  (N.  S.)  76 50 

Lee  v.  Tower,  124  N.  Y.  370 41,  287,  292,  348 

Lefevre  v.  Lefevre,  59  N.  Y.  434 285 

Leggett  v.  Firth,  53  Hun,  152;  132  N.  Y.  7 149,  175 

Leggett  v.  Hunter,  19  N.  Y.  445 33,  36,  231 

Leggett  v.  Perkins,  2  N.  Y.  297 4,  100,  101,  231 

Lent  v.  Howard,  89  K  Y.  169 268,  287,  288 

Leonard  v.  Burr,  18  N.  Y.  96 75,  91,  96,  111,  150 

Levey  v.  Bull,  47  Hun,  350 32 

Levi  v.  Scheel,  124  App.  Div.  613 60,  71,  146 

Levy  v.  Hart,  54  Barb.  248 42,  46,  58 

Levy  v.  Levy,  33  N.  Y.  97 279,  280,  281,  290,  291 

Lewis  v.  Howe,  174  N.  Y.  340 312 

Lewisohn  v.  Henry,  179  N.  Y.  352 88,  111,  139,  312,  313,  339,  341 

Liebmann  v.  Liebmann,  53  Misc.  488 59 

Little  v.  Willford,  31  Minn.  173 355 

Littlejohns  v.  Household,  21  Beav.  29 314 

Livingston,  Matter  of,  34  N.  Y.  555 32,  102 

Livingston  v.  Greene,  52  N.  Y.  118 312,  339,  343 

Livingston  v.  1ST.  Y.   Life  Ins.  &  T.  Co.,  13  K  Y.  Supp.  105;  36 

K  Y.  State  Rep.  566;  151  N.  Y.  667 63 


TABLE  OF  CASES.  XXxiii 

(References  are  to  pages.) 

Livingston  v.  Tucker,  107  N.  Y.  549 24,  12 

Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135. .  .  .28,  43,  68,  71,  72,  100,  105,  107, 

231,  309,  346 

Locke  v.  Mabbett,  3  Abb.  Ct.  App.  Dec.  68 32 

Lockman  v.  Reilly,  95  K  Y.  64 267,  271,  272,  324 

Lockwood  v.  Mildeberger,  159  N.  Y.  181 149 

Loder  v.  Hatfield,  71  N.  Y.  92 347 

Logan,  Matter  of,  131  K  Y.  456 267 

Lorillard  v.  Coster,  5  Pui.  172 ;  14  Wend.  265 70,  75,  98,  137 

Losey  v.  Stanley,  147  N.  Y.  560 105,  108,  311 

Lougheed  v.  D.  B.  Church,  58  Hun,  364;  129  K  Y.  211 95,  96,  106, 

280,  308 

Lounsbury  &  Trustees,  129  N.  W.  Rep.  36 355 

Lovett  v.  Gillender,  35  N.  Y.  617 78,  346 

Lowenhaupt  v.  Stanisics,  95  App.  Div.  171 146 

Lyons  v.  Ostrander,  167  N.  Y.  135 86,  343 

Lythe  v.  Beveridge,  58  N.  Y.  592 310 


Mc  Arthur  v.  Gordon,  51  Hun,  511 ;  126  N.  Y.  597 100 

McArthur  v.  Scott,  113  U.  S.  340 39 

McClure,  Matter  of,  136  N.  Y.  238 310,  313 

McComb,  Matter  of,  117  N.  Y.  378 287 

McComb  v.  Title  Guarantee  &  Trust  Co.,  36  Misc.  370;  70  App.  Div. 

618 120,129,293,295 

McCormack  v.  McCormack,  60  How.  Pr.  196  128,  131 

McCosker  v.  Brady,  1  Barb.  Ch.  329 ;  3  Den.  610 59 

McCurdy  v.  N.  Y.  L.  I.  &  T.  Co.,  151  N.  Y.  667 63 

McDonald  v.  O'Hara,  144  N.  Y.  566 157,  158,  287,  288 

McDougall  v.  Dixon,  19  App.  Div.  420 101 

McEvoy  v.  Appleby,  27  Hun,  44. 32 

McGillis  v.  McGillis,  154  N.  Y.  532 17,  94,  95,  167,  311,  312,  313,  339. 

341 

McGowan  v.  McGowan,  2  Duer,  57 24,  47,  126 

McGrath  v.  Van  Stavoren,  8  Daly,  454 268 

McGraw,  Matter  of,  111  N.  Y.  66 281,  288 

McGregor  v.  McGregor,  22  N.  Y.  Week.  Dig.  305 64 

McGuire  v.  McGuire,  80  App.  Div.  63 40,  129 

Mclrnerny  v.  Haase,  163  Mich.  364 354 

McLouth  v.  Hunt,  154  N.  Y.  179 67 

McPherson  v.  Rollins,  107  N.  Y.  316 100,  260 

McSorley  v.  Leary,  4  Sandf.  Ch.  414 41 

McSorley  v.  Wilson,  4  Sandf.  Ch.  515 57,  126 

Maben,  Matter  of,  32  N.  Y.  State  Rep.  790;  rev'd  14  N.  Y.  Supp. 

732;  60  Hun,  268;  rev'd  131  N.  Y.  255 344 

Maccafil,  Matter  of,  127  App.  Div.  21 272 

Mahan,  Matter  of,  98  N.  Y.  372 342,  345,  346 


xxxiv  TABLE  OF  CASES. 

(References  are  to  pages.) 

Maitland  v.  Baldwin,  70  Hun,  267 67,  164,  173,  291 

Mandlebaum  v.  McDonell,  29  Mich.  78 80,  96,  157,  354 

Manice  v.  Manice,  43  X.  Y.  303  . .  .43,  45,  54,  55,  66,  69,  86,  94,  101,  111, 
128,  129,  130,  131,  132,   133,   143,  155,  211,  251,  265,  268,  280,  291, 

292,  309,  341,  342,  346,  347,  349 

Mauley  v.  Fiske,  139  App.  Div.  665 ;  201  N.  Y.  546 283 

Manning  v.  Evans,  19  Hun,  500 32 

Mansbach  v.  New,  58  App.  Div.  191 ;  170  N.  Y.  585 266 

March  v.  March,  186  N.  Y.  99 288,  312,  339 

Marsellis  v.  Thalheimer,  2  Pai.  35 48 

Marsh  v.  Wheeler,  2  Edw.  Cli.  156 347 

Martelli  v.  Holloway,  L.  R.  5  H.  of  L.  532 309 

Martial,  Matter  of,  15  N.  Y.  Supp.  89 42 

Martin  v.  Funk,  75  N.  Y.  134 99,  267 

Martin  v.  Pine,  79  Hun,  426 33,  290,  291 

Martinus,  Matter  of,  65  Misc.  135 146 

Marvin  v.  Smith,  56  Barb.  600;  46  N.  Y.  571 20,  34,  60,  102,  144,  145 

Marx  v.  McGlynn,  88  N.  Y.  357 100,  101,  104,  105,  273,  280,  285 

Mason  v.  Jones,  2  Barb.  229;  see  2  N.  Y.  327,  and  3  N.  Y.  375 50, 

67,  71,  127 
Mason  v.  Mason's  Exrs.,  2  Sandf.  Ch.  432;  2  Barb.  229. . .  .48,  67,  68,  111, 

130,  131 

Masury,  Matter  of,  28  App.  Div.  580 ;  159  N.  Y.  532 28 

Matteson  v.  Armstrong,  11  Hun,  245 19 

Matteson  v.  Palser,  173  N.  Y.  404 38,  39,  49,  72,  86 

Matthews  v.  Studley,  17  App.  Div.  303;  161  N.  Y.  633 67,  127 

Maurice  v.  Graham,  8  Pai.  483 127 

Maxcy  v.  Oshkosh.  144  Wis.  238 356 

Mead,  Matter  of,  27  State  Rep.  36 40 

Mead  v.  Mitchell,  17  N.  Y.  210 23,  86,  88,  323,  325 

Mee  v.  Gordon,  187  N.  Y.  400 101,  309,  310 

Meeker  v.  Draffen,  201  N.  Y.  205 51 

Meeks  v.  Meeks,  161  N.  Y.  66  310 

Meldon  v.  Devlin,  31  App.  Div.  146;  167  K  Y.  573 58,  59,  146,  148, 

163 

Mellen  v.  Mellen,  139  N.  Y.  210 157,  158,  159,  168 

Mendel  v.  Levis,  40  Misc.  271 67,  295 

Metcalfe  v.  Union  Trust  Co.,  181  N.  Y.  39 23,  33,  108,  143,  274 

Meth.  Church  v.  Clark,  41  Mich.  730 354,  355 

Meyer  v.  Cahen,  111  N.  Y.  270 342 

Mikantowicz,  Matter  of,  60  Misc.  273 47,  50 

Miles  v.  Harford,  12  Ch.  D.  691 301,  303 

Miller  v.  Emans,  19  N.  Y.  384 18,  96 

Miller  v.  Gilbert,  144  N.  Y.  68. 311,  313,  341,  342 

Miller  v.  McBlain,  98  N.  Y.  517 343,  344 

Miller  v.  Macomb,  26  Wend.  229 40,  343 

Miller  v.  Wright,  109  N.  Y.  194 167,  287,  288 


TABLE  OF  CASES.  xxxv 

(References  are  to  pages.) 

Mill3  v.  Evansville  Seminary,  58  Wis.  135 96 

Mills  v.  Husson,  140  N.  Y.  99 145,  258,  260,  267,  278 

Mills  v.  Mills,  50  App.  Div.  221 17,  33,  256 

Milwaukee  Protestant  Home  v.  Becker,  87  Wis.  409 356 

Miner,  Matter  of,  146  N.  Y.  121 312,  324 

Minot  v.  Minot,  17  App.  Div.  521 324 

Mitchell  v.  Thorne,  134  N.  Y.  536 310 

Moehring,  Matter  of .  154  N.  Y.  423 175,  259,  261,  278 

Moffett  v.  Elmendorf,  152  N.  Y.  475 248,  312 

Moloughney,  Matter  of,  67  App.  Div.  148 47,  49,  72 

Monarque  v.  Monarque,  80  N.  Y.  320 23,  86,  88,  95,  248 

Moncrief  v.  Ross,  50  N.  Y.  431 287 

Monson  v.  N.  Y.  S.  &  T.  Co.,  140  N.  Y.  498 64 

Montanye  v.  Montanye,  29  App.  Div.  377 72 

Montgomery  v.  Merrill,  18  Mich.   338 43 

Montignani  v.  Blade,  145  N.  Y.  Ill 58,  59,  60,  163,  231,  266,  324 

Monypeny  v.   Monypeny,   131  App.    Div.  269;  136    App.   Div.    677; 

202  N.  Y.  90  55 

Moore,  Matter  of,  152  N.  Y.  602 343 

Moore  v.  Appleby,  36  Hun,  368;  108  N.  Y.  237.  .91, 102,  106,  166,  167,  247 

Moore  v.  Hegeman,  72  N.  Y.  376 64 

Moore  v.  Littel,  41  N.  Y.  66. . .  .88,  89,  90,  91,  319,  320,  323,  324,  326,  327, 

329,  330,  331,  332,  333,  334,  335,  339,  340 

Moore  v.  Lyons,  25  Wend.  119 343 

Moore  v.  Moore,  47  Barb.  257 60,  62 

Morgan  v.  Masterton,  4  Sandf .  442 41 ,  102 

Morse  v.  Morse,  85  N.  Y.  53. 100,  101,  144,  231 

Morton  v.  Morton,  8  Barb.  18 55 

Morton  v.  Woodbury,  153  N.  Y.  243 281,  308,  312 

Morton  Trust  Co.  v.  Sands,  195  N.  Y.  28 291,  293 

Moser  v.  Talman,  114  App.  Div.  850 285 

Mott  v.  Ackermau,  92  N.  Y.  539 17,  56,  70,  92,  93,  10G,  149,  172,  216, 

223,  261 

Moultrie  v.  Hunt,  23  N.  Y.  394  140 

Mount,  Matter  of,  185  N.  Y.  162 57,  64,  266,  291,  295 

Mount  v.  Tuttle,  183  N.  Y.  358 285,  348,  353 

Mt.  Morris  Co-Op.  B.  &  L.  Assn.  v.  Smith,  120  N.  Y.  Supp.  676. .. .       27 

Mullarky  v.  Sullivan,  136  K  Y.  227 64,  312,  343 

Mullins  v.  Mullins,  79  Hun,  421 101,  157 

Million,  Matter  of,  145  N.  Y.  98 272 

Mulreed  v.  Clark,  110  Mich.  229 354 

Murphy,  Matter  of,  144  N.  Y.  557 76,  213,  342 

Murphy  v.  Whitney,  140  X.  Y.  541... 17,  76,  92,  94,  99,  111,  213,  228,  250 

Murray,  Matter  of,  75  App.  Div.  246 296,  301 

Murray,  Matter  of,  34  Misc.  39 285 

Murray  v.  Miller,  178  N.  Y.  316 248,  283,  285 


xxxvi  TABLE  OF  CASES. 

(References  are  to  pages.) 

Mutual  Life  Ins.  Co.  v.  Shipman,  108  N.  Y.  19 49 

Mutual  Life  Ins.  Co.  v.  Shipman,  119  N.  Y.   324 , 5,  149 

Myer  v.  Thompson,  35  Hun,  561 32 

Myers,  Matter  of,  131  N.  Y.  409 82 

Nat.  Bank  of  Newburgh  v.  Bigler,  83  N.  Y.  51 81 

N.  T.  Bank  v.  Wetmore,  124  K  Y.  241 32 

Nearpass  v.  Newman,  106  N.  Y.  47 99 

Neaves  v.  Neaves,  37  Hun,  438  49 

Neilson  v.  Brown,  31  Misc.  562 76 

Nellis  v.  Nellis,  99  N.  Y.  505 17,  23,  87,  88,  92,  344,  345 

Nelson  v.  Russell,  135  N.  Y.  137 311,  344 

Neresheimer  v.  Smyth,  167  N.  Y.  202 266 

Nesmith,  Matter  of,  140  N.  Y.  609  129 

Nester  v.  Nester,  68  Misc.  207 59 

Newton  v.  Hunt,  134  App.  Div.  325;  201  N.  Y.  599 32 

Newton  v.  Jay,  107  App.  Div.  457 32 

N.  Y.  Dry  Dock  Co.  v.  Stillman,  30  N.  Y.  174 101,  102 

N.  Y.  L.  &  W.  R.  R.  Co.,  Matter  of,  105  N.  Y.  89 17,  343,  344 

N.  Y.  Life  Ins.  &  T.  Co.  v.  Cary,  191  N.  Y.  33  63,  309 

N.  Y.  Life  Ins.  &  T.  Co.  v.  Kane,  17  App.  Div.  542 129 

N.  Y.  Life  Ins.  &  T.  Co.  v.  Livingston,  133  N.  Y.  125 149,  159,  261 

Nichols  v.  Nichols,  42  Misc.  381 64 

Nicollv.  N.  Y.  &E.  R.  Co.,  12  N.  Y.  121 95,  209 

Nicoll  v.  Walworth,  4  Den.  385 43,  106 

Niles  v.  Mason,  126  Mich.  482 354 

Norris  v.  Beyea,  13  N.  Y.  273 17,  175,  265 

Norton  v.  Norton,  2  Sandf.  296 106 

Noyes  v.  Blakeman,  6  N.  Y.  567 32 

Obecny  v.  Goetz,  116  App.  Div.  807 ;  134  App.  Div.  166 140 

O'Brien  v.  Mooney,  5  Duer,  51 41 

Ockerman  v.  Cross,  54  N.  Y.  29 348 

Odell  v.  Youngs,  64  How.  Pr.  56 39 

O'Donaghue  v.  Smith,  184  N.  Y.  365 26 

Ogilby  v.  Hickok,  144  App.  Div.  61 356 

Ogsbury  v.  Ogsbury,  115  N.  Y.  290 287 

O'Hara,  Matter  of.     See  O'Hara  v.  Dudley. 

OTIara  v.  Dudley,  95  N.  Y.  403 102 

O'Keeffe  v.  Westphal,  139  App.  Div.  79 50 

Olcott  v.  Ossowski,  34  Misc.  376 62 

Olney  v.  Hull,  21  Pick.  311 313 

Onderdonk  v.  Onderdonk,  127  N.  Y.  196 293 

Onondaga  T.  &  D.  Co.  v.  Price,  87  N.  Y.  542 260 

Orange  County  Trust  Co.  v.  Morrison,  56  Misc.  88 59,  76 

O'Reilly,  Matter  of,  59  Misc.  136 82 


TABLE  OF  CASES.  xxxvii 

(References  are  to  pages.) 

Orphan  Asylum  v.  White,  6  Dem.  201 222,  231 

Oviatt  v.  Hopkins,  20  App.  Div.  108. .    33 

Owatonna,  City  of,  v.  Rosebrock,  88  Minn.  318 356 

Owens  v.  Missionary  Soc'y,  14  N.  Y.  380 280 

Oxley  v.  Lane,  35  N.  Y.   340. .  .39,  46,  47,  59,  69,  76,  78,  175,  203,  219,  291 

Paget  v.  Melcher,  156  N.  Y.  399 88,  91,  94,  167,  339,  341 

Palmer  v.  Dunham,  52  Hun,  468 ;  125  N.  Y.  68 , 3-12 

Palmer  v.  Hallock,  94  App.  Div.  485 116 

Palmer  v.  Horn,  84  N.  Y.  516 244 

Palms  v.  Palms,  68  Mich.  355 64,  129,  355 

Parker  v.  Bogardus,  5  N.  Y.  309 140 

Parker  v.  Linden,  113  N.  Y.  28 17,  157,  288 

Parks  v.  Parks,  9  Pai.  107 126,  308 

Paton  v.  Langley,  50  Mich.  428 35 1 

Patterson  v.  Ellis,  11  Wend.  259 343,  346 

Peard  v.  Kekewich,  15  Beav.  166 304 

Pearson  v.  Collins,  113  App.  Div.  657;  187  N.  Y.  530 285 

Peck  v.  Sherwood,  56  N.  Y.  615 Ill 

Pell,  Matter  of,  171  N.  Y.  48 154 

Pells  v.  Brown,  Cro.  Jac.  590;  1  Eq.  Abr.  187,  c.  4. 180 

Penniman  v.  Howard,  71  Misc.  598 356 

Penny  v.  Croul,  76  Mich.  471 355 

People  v.  Green,  56  N.  Y.  466 138 

People  v.  Powers,  147  N.  Y.  104 281,  283 

People  v.  Simonson,  126  N.  Y.  299 280 

Peo.  ex  rel.  Short  v.  Bacon,  99  N.  Y.  275 231 

Peoples'  Trust  Co.  v.  Flynn,  188  N.  Y.  385,  reversing  113  App.  Div. 

683 86,  126,  144,  272,  292,  320,  332,  336,  340 

Perkins,  Matter  of,  68  Misc.  255 285 

Perry,  Matter  of,  48  Misc.  285 59,  76,  223,  307 

Persons  v.  Snook,  40  Barb.  144 41,  292 

Peterson  v.  De  Baun,  36  App.  Div.  259 91,  93,  333 

Pfaler  v.  Raberg,  3  Dem.  360 41,  285 

Phelps'  Ex'r  v.  Pond,  23  N.  Y.  69 41,  59,  61,  129,  280,  288,  346,  349 

Phillips,  Matter  of,  56  Misc.  96 62 

Phillips  v.  Davies,  92  N.  Y.  199 64,  149,  310 

Pickert  v.  Windecker,  73  Hun,  476 92 

Pierce,  In  re,  56  Wis.  560 355 

Pierpont  v.  Patrick,  53  N.  Y.  591 312 

Pierson  v.  Drexel,  11  Abb.  K  C.  150 267 

Pillsbury,  Matter  of,  50  Misc.  367;  113  App.   Div.   893;  186  N.  Y. 

545 39,  172 

Pimel  v.  Betjemann,  183  N.  Y.  194 244 

Plumb  v.  Tubbs,  41  N.  Y.  442 96 

Plymouth  Soc'y  v.  Hepburn,  57  Hun,  161 95 

Porter  v.  Baldwin,  139  App.  Div.  278 272 


xxxviii  TABLE  OF  CASES. 

(References  are  to  pages.) 

Post  v.  Bruere,  127  App.  Div.  250 67 

Post  v.  Hover,  33  N.  Y.  593 55,  76,  102,  156,  292,  309 

Power  v.  Cassidy,  79  K  Y.  602 287 

Powers  v.  Powers,  28  Wis.  659 355 

Pray,  Matter  of,  48  Misc.  285 140 

Pray  v.  Hegeman,  92  N.  Y.  508 64,  128,  131,  146,  268 

Pray  v.  Hegeman,  98  N.  Y.  351 64 

Prentice  v.  Janssen,  79  K  Y.  478 157,  158,  288 

Price  v.  Hall,  L.  R.  5  Eq.  399 314 

Proctor  v.  Bishop  of  Bath  &  AVells,  2  H.  Bl.  358 303 

Provost  v.  Provost,  70  K  Y.  141 45,  59,  76,  156 

Pruyn,  Matter  of,  141  N.  Y.  544 25 

Pryer  v.  Pryer,  126  N.  Y.  Supp.  393 64 

Pulitzer  v.  City  of  N.  Y.,  48  App.  Div.  6 138 

Purdy  v.  Hayt,  92  N.  Y.  446 70,  95,  204,  216,  221,  222,  223,  291,  304, 

305,  307,  335 

Putnam  v.  Lincoln  Safe  Deposit  Co. ,  191  N.  Y.  157 101 

Putnam  v.  Putnam,  4  Bradf.  308 70 

Quackenbos  v.  Kingsland,  102  N.  Y.  128 344 

Quade  v.  Bertsch,  65  App.  Div.  600;- 173  K  Y.  615..  .24,  76,  143,  156,  346 
Quinn  v.  Hardenbrook,  54  K  Y.  82 313 


Radley  v.  Kuhn,  97  N.  Y.  26. . .  .55,  73,  75,  76,  94,  100,  111,  112,  113,  114, 

125,  131,  156,  217,  311 

Ranken,  Matter  of  101  App.  Div.  189;  182  K  Y.  519 132 

Rankine  v.  Metzger,  69  App.  Div.  264;  174  X.  Y.  540 108 

Rausch  v.  Rausch,  21  N.  Y.  Supp.  786 79 

Raymond,  Matter  of,  73  App.  Div.  11 38,  39,  72 

Raymond  v.  Harris,  84  App.  Div.  546 32 

Raymond  v.  Rochester  Trust  Co.,  75  Hun,  239 33 

Raymond  v.  Tiffany,  59  Misc.  283 32 

Read  v.  Williams,  125  N.  Y.  560 148,  251,  280,  281,  285,  287 

Redfield  v.  Redfield,  126  K  Y.  466 126,  310 

Reeves  v.  Snook,  86  App.  Div.  303 146 

Reformed  P.  D.  Church  v.  Brown,  4  Abb.  Ct.  App.  Dec.  31 281 

Renwick  v.  Weeden,  135  App.  Div.  695 143 

Reynolds  v.  Denslow,  80  Hun,  359 101 

Rhodes  v.  Caswell,  41  App.  Div.  229 105,  267 

Rice  v.  Barrett,  102  K  Y.  161 41,  131,  291 

Richards  v.  Moore,  5  Redf.  278 41,  251 

Richardson  v.  Amsdon,  85  N.  Y.  Supp.  342 17,  23 

Rider  v.  Mason,  4  Sandf.  Ch.  351 ;  2  Barb.  Ch.  79 32 

Riggs  v.  Purcell,  125  N.  Y.  193 80 

Riker  v.  Cornwell,  113  K  Y.  115 312 

Riker  v.  Gwynne,  201  N.  Y.  143 316 


TABLE  OF  CASES.  xxxix 

(References  are  to  pages.) 

Riker  v.  Leo,  115  N.  Y.  93 279,  280,  281 

Riker  v.  North  American  Relief  Soc'y,  133  N.  Y.  519 280,  281 

Robb  v.  Washington  &  Jefferson  College,  185  N.  Y.  485 38,  99,  125, 

126,  284,  285,  348,  350,  353 

Roberts'  Will,  98  N.  Y.  Supp.  809;  112  App.  Div.  732 76,  256 

Robert  v.  Corning,  89  N.  Y.  225. . .  .19,  20,  22,  27,  75,  76,  88,  91,  101,  111, 
113,  145,  155,  203,  246,  248,  272,  273,  274,  275,  276,  277,  280,  287,  288, 

346 

Robertson  v.  de  Brulatour,  188  N.  Y.  301   108 

Robinson  v.  Martin,  200  N.  Y.  159 308,  338,  340 

Rochester,  Matter  of,  110  N.  Y.  159 60 

Roche vot  v.  Rochevot,  74  App.  Div.  585 26 

Rocke  v.  Rocke,  9  Beav.  66 77 

Roe,  Matter  of,  119  N.  Y.  509 103 

Roe  v.  Vingut,  117  N.  Y.  204 49,  132,  309 

Rogers,  Matter  of,  22  App.  Div.  428 ;  161  N.  Y.  108 128 

Rogers  v.  Rogers,  111  N.  Y.  228 108 

Rome  Exch.  Bank  v.  Eames,  4  Abb.  Ct.  App.  Dec.  83 323 

Rong  v.  Haller,  109  Minn.  191 354,  355 

Roome  v.  Phillips,  24  N.  Y.  463 86,  91,  311 

Roos,  Matter  of,  4  Misc.  232.    .    .  146 

Roosa  v.  Harrington,  171  N.  Y.  341  ...  .88,  90,  91,  248,  308,  339,  341,  342 

Roosevelt,  Matter  of,  143  N.  Y.  120 91,  127 

Roosevelt  v.  Porter,  36  Misc.  441 127 

Roosevelt  v.  Roosevelt,  6  Hun,  31 ;  64  N.  Y.  651 21,  28,  260,  269,  277 

Roosevelt  v.  Thurman,  1  Johns.  Ch.  220 78 

Root  v.  Snyder,  161  Mich.  200 354 

Root  v.  Stuyvesant,  18  Wend.  257 73,  291 

Rose  v..  Hatch,  55  Hun,  457 ;  125  N.  Y.  427 100,  108,  175 

Rose  v.  Hawley,  118  N.  Y.  502 96 

Rose  v.  Rose,  4  Abb.  Ct.  App.  Dec.  108. .  .41,  204,  230,  231,  272,  280,  301 

Rosenburg  v.  Rosenburg,  40  Hun,  91 59,  267 

Ross  v.  Harden,  79  N.  Y.  84 81 

Rothschild  v.  Roux,  78  App.  Div.  282 125 

Rothschild  v.  Schiff ,  188  N.  Y.  327 283 

Royce  v.  Adams,  123  N.  Y.  402 149 

Rudd  v.  Cornell,  171  N.  Y.  114 248,  341 

Ruppert's  Estate,  Tucker,  480 131 

Russell,  Matter  of,  5  Dem.  388 41,  57,  309 

Russell,  Matter  of,  168  N .  Y .  169 70,  248,  287,  344 

Ruth  v.  Oberbrunner,  40  Wis.  238 356 

Ryder,  In  re,  11  Pai.  185 332 

Ryder,  Matter  of,  41  App.  Div.  247 220,  249 

Ryder  v.  Lott,  123  App.  Div.  685 ;  199  N .  Y .  543 175 

Sabbaton  v.  Sabbaton,  76  App.  Div.  216 71 

St.  Amour  v.  Rivard,  2  Mich.  294 354,  355 


Xl  TABLE  OP  CASES. 

(References  are  to  pages.) 

St.  John  v.  Andrews  Institute,  191  N.  Y.  254 25,  128,  145,  146,  280. 

283,  284,  285,  348,  349,  350,  351 

Salisbury  v.  Slade,  160  N.  Y.  278 107,  144,  231,  247,  287,  288 

Sand's  Will,  Matter  of,  3  N.  Y.  Supp.  67,  20  State  Rep.  850. . . .48,  49,  50 

Sanford  v.  Goodell,  82  Hun,  369 93,  204,  228 

Saperstein  v.  Ullman,  49  App.  Div.  446 82 

Saunders  v.  Vautier,  4  Beav.  115  (aff'd  Cr.  &  Ph.  240) 77 

Savage  v.  Burnham,  17  N.  Y.  561 46,  64,  67,  68,  266,  268,  287,  291, 

292,  293,  342 
Sawyer  v.  Cubby,  146  N.  Y.  192 18,  45,  88,  90,  93,  94,  95,  204,  256, 

263,  313 

Saxton  v.  Webber,  83  Wis.  617 355 

Sayles  v.  Best,  140  N.  Y.  368 149,  157 

Schenck  v.  Barnes,  156  N.  Y.  316 30,  32 

Schermerhorn  v.  Cotting,  131  N.  Y.  48. .  .44,  51,  58,  60,  63,  64,  67,  68,  72, 

146,  231 
Schettler  v.  Smith,  41  N.  Y.  328 50,  51,  57,  63,  146,  233,  291,  295,  296, 

301,  303 

Schey  v.  Schey,  194  N.  Y.  368  140,  266,  291 

Schicrloh  v.  Schierloh,  148  N.  Y.  103 102 

Schlereth  v.  Schlereth,  173  N.  Y.  444.  .42,  47,  48,  49,  50,  55,  248,  266,  287, 

290,  303,  341,  342 

Schmidt  v.  Jennett,  195  N.  Y.  486 310 

Schnarr  v.  Henning,  N.  Y.  Daily  L.  Reg.  Dec.  23,  1882 41 

Schneider  v.  Heilbron,  115  App.  Div.  720;  101  N.  Y.  Supp.  152 267 

Scholle  v.  Scholle,  US  N.  Y.  261 288,  308 

Schreyer  v.  Schreyer,  101  App.  Div.  456;  182  N.  Y.  555.    .20,  27,  28,  109 

Schuler,  Matter  of,  24  N.  Y.  Supp.  847 285 

Schwartz  v.  Rehfuss,  129  App.  Div.  630;  198  N.  Y.  585 89 

Scott  v.  Nevins,  6  Duer,  672 32 

Scott  v.  West,  63  Wis.  529 105,  324,  355 

Seaman,  Matter  of,  147  N.  Y.  69 91,  311,  341,  342,  346 

Seaward  v.  Davis,  198  N.  Y.  415 175 

Security  Trust  Co.  v.  Dodd,  Mead  &  Co. ,  173  U.  S.  624 348 

Seebeck,  Matter  of,  140  N.  Y.  241 265,  311,  312,  313,  342,  346 

Seibert  v.  Miller,  34  App.  Div.  602 312 

Seitz  Vi  Paversham,  141  App.  Div.  903 .     356 

Seymour,  Matter  of,  76  App.  Div.  300 32 

Slianahan  v.  Kelly,  88  Minn.  202  356 

Shattuck,  Matter  of,  193  N.  Y.  446  284 

Shaw  v.  English,  40  Misc.  37 76 

Shepard  v.  Gassner,  41  Hun,  326 71,  72 

Sheridan  v.  House.  4  Abb.  Ct.  App.  Dec.  218 323,  326 

Sherman  v.  Sherman,  3  Barb.  385 140 

Sherman  v.  Skuse,  166  N.  Y.  345 32 

Sherman  v.  Tucker,  60  App.  Div.  127  32 


TABLE  OF  CASES.  xli 

(References  are  to  pages.) 

Sherwood  v.  Am.  Bible  Soc,  4  Abb.  Ct.  A  pp.  Dec.  227 101,  280,  285 

Shields  v.  Klopf,  70  Wis.  19 348 

Shipman  v.  Rollins,  98  N.  Y.  311 41,  67,  232,  280,  291,  341,  347 

Shotwell  v.  Mott,  2  Sandf.  Ch.  46 57 

Shult  v.  Moll,  132  N.  Y.  122 310 

Sillick  v.  Mason.     See  Rider  v.  Mason. 

Simpson  v.  Cook,  24  Minn.  ISO 40,  49,  59,  354 

Simpson  v.  English,  1  Hun,  559 131 

Simpson  v.  Trust  Co.  of  America,  129  App.  Div.  200;  197  N.  Y.  586, 

57,  58,  69,  266,  290,  307 

Skinner  v.  Quin,  43  N.  Y.  99 80,  149 

Slater  v.  Slater,  114  App.  Div.  160;  188  N.  Y.  633 Ill,  139 

Sloan  v.  Tiffany,  103  App.  Div.  540 32 

Slocum,  Matter  of,  169  N.  Y.  153 82,  129 

Smith,  Matter  of,  131  N.  Y.  239 43,  94,  248,  339,  346,  347 

Smith  v.  Barrie,  56  Mich.  315 96 

Smith  v.  Bell,  6  Pet.  68 175 

Smith  v.  Central  Trust  Co.,  154  N.  Y.  333 348,  349 

Smith  v.  Chesebrough,  176  N.  Y.  317 281,  283,  291 

Smith  v.  Edwards,  88  N.  Y.  92.  .41,  48,  68,  75,  76,  102,  111,  150,  259,  272, 

274,  291,  341,  346 

Smith  v.  Farmer  Type  Founding  Co.,  16  App.  Div.  438 157,  169 

Smith  v.  Floyd,  140  N.  Y.  337 73,  94,  163,  167 

Smith  v.  Havens  Relief  Fund,  118  App.  Div.  678;  190  N.  Y.  557. ...     285 

Smith  v.  Hull,  97  App.  Div.  228;  184  N.  Y.  534 344 

Smith  v.  Parsons,  146  N.  Y.  116 132 

Smith  v.  Robertson,  89  N.  Y.  555 288 

Smith  v.  Scholtz,  68  N.  Y.  41 87,  319 

Smith  v.  Secor,  157  N.  Y.  402. . .     23 

Smith  v.  Smith,  141  N.  Y.  29   312,  313 

Smith  v.  Van  Ostrand,  64  N.  Y.   278 175,  265 

Snell  v.  Tuttle,  44  Hun,  324 347 

Snyder,  Matter  of,  21  N.  Y.  Supp.  430 41,  82 

Soper  v.  Brown,  136  N.  Y.  244 312 

Southern  v.  Wollaston,  16  Beav.  166 39 

Spencer,  Matter  of,  119  App.  Div.  883;  190  N.  Y.  517 154 

Spencer  v.  Spencer,  38  App.  Div.  403 129,  132 

Spitzer  v.  Spitzer,  33  App.  Div.  430  27,  28,  76,  M 5 

Spofford  v.  Pearsall,  138  N.  Y.  57 25 

Stagg  v.  Jackson,  1  N.  Y.  206 288 

Stanley  v.  Payne,  G5  Misc.  77 20 

Staples  v.  Hawes,  39  App.  Div.  548 41 

Starr  v.  Starr,  132  N.  Y.  154 25,  76,  308,  311 

State  v.  Holmes.  115  Mich.  456 354 

Stehlin  v.  Stehlin,  67  Hun,  110  47,  49 

Steinhardt  v.  Cunningham,  130  N.  Y.  292 101,  104,  107,  110 


Xlii  TABLE  OF  CASES. 

(References  are  to  pages.) 

Steinway  v.  Steinway,  163  N.  Y.  183 17,  25,  71,  76,  86,  87,  150,  204, 

208,  254,  259,  261,  264,  265,  267,  272,  274,  309,  341,  342,  346 

Stephenson  v.  Short,  92  N.  Y.  433 285 

Stettheimer  v.  Stettheimer,  24  N.  Y.  State  Rep.  70;  114  N.  Y.  501. .     266 

Stettheimer  v.  Tone,  114  N.  Y.  501 266 

Stevens,  Matter  of ,  187  N.  Y.  471 129 

Stevens,  Matter  of,  161  N.  Y.  122 290 

Stevens  v.  Earl,  25  Mich.  41 43 

Stevens  v.  Melcher,  152  N.  Y.  551 25 

Stevens  v.  Miller,  2  Dem.  597 50 

Stevenson  v.  Lesley,  70  N.  Y.  512 67,  68,  86,  99,  105,  106,  248,  343 

Stevenson  v.  Short,  92  N.  Y.  433 285 

Stewart,  Matter  of,  131  N.  Y.  274 148,  163 

Stewart  v.  Hamilton,  37  Hun,  19 19,  20 

Stewart  v.  McMartin,  5  Barb.  438 49 

Stewart  v.  Robinson,  115  N.  Y.  328 82 

Stewart  v.  Woolley,  121  App.  Div.  531 29,  266,  277 

Stimson  v.  Vroman,  99  N.  Y.  80 312 

Stoiber  v.  Stoiber,  40  App.  Div.  156 19,  20,  21,  27,  160,  203,  229,  273, 

274,  277 

Stokes  v.  Weston,  142  N.  Y.  433 311,  312,  344 

Storer  v.  Eyclesheimer.  4  Abb.  Ct.  App.  Dec.  309 96 

Storm  v.  Storm,  4  N.  Y.  State  Rep.  670;  113  N.  Y.  640 41 

Strang,  Matter  of,  121  App.  Div.  112 , 285 

Strang  v.  Strang,  4  Redf.  376 251 

Straut,  Matter  of,  126  N.  Y.  201 25,  267,  271,  277 

Stringer  v.  Young,  191  N.  Y.  157 45,  86,  254,  259,  260,  262,  268 

Sturgis,  Matter  of,  164  N.  Y.  485 349,  350,  351 

Surdam  v.  Cornell,  116  N.  Y.  305 68,  87 

Swarthout  v.  Ranier,  143  N.  Y.  499 175 

Sweeney  v.  Warren,  127  N.  Y.  426. ..  .4,  5,  25,  4<,  147,  148,  163,  287,  288 

Syms  v.  Mayor,  18  J.  &  S.  289 83 

Syracuse  Savings  Bank  v.  Holden,  105  N.  Y.  415 102 

Tabernacle  Church  v.  Fifth  Ave.  Church,  60  App.  Div.  327;  172 

N.  Y.  598 5,  266 

Taggart  v.  Murray,  53  N.  Y.  233. . . 40,  88,  89,  93,  94,  175,  311 

Tallmadge  v.  E.  River  Bank,  26  N.  Y.  105 97 

Tallman  v.  Tallman,  3  Misc.  465 39 

Tatum,  Matter  of,  169  N.  Y.  514 73,  287,  313 

Tavshanjian  v.  Abbott,  200  N.  Y.  374 292 

Tayloe  v.  Gould,  10  Barb.  388 57,  219,  248,  251 

Teed,  Matter  of,  59  Hun,  63 285 

Teed  v.  Morton,  60  N.  Y.  502 94,  248,  339,  345 

Temple  v.  Hawley,  1  Sandf.  Ch.  153 54 

Terry  v.  Wiggins,  47  N.  Y.  512 175,  310 

Thall  v.  Dreyfus,  84  App.  Div.  569 33,  59 


TABLE  OF  CASES.  xliii 

(References  are  to  pages.) 

Thatcher  v.  St.  Andrew's  Church,  37  Mich.  264  354 

Thayer  v.  McGee,  2<J  Mich.  195 96 

Thebaud  v.  Schermerhoru,  30  Hun,  332 45,  99 

Thellusson  v.  Woodford,  4  Ves.  227;  11  Ves.  112 185 

Thieler  v.  Rayner,  115  App.  Div.  626;  190  N.  Y.  546 76,  220,  228,  230 

Thomas,  Matter  of,  Tucker,  367 204,  251 

Thompson  v.  Carmichael's  Ex'rs,  1  Sandf.  Ch.  387 50,  57,  137,  251 

Thompson  v.  Clenriening      See  Thompson  v.  Carmichael. 

Thompson  v.  Thompson,  28  Barb.  432  219,  251 

Thorn  v.  Coles,  3  Edw.  Ch.  330 41,  64,  67,  286 

Thoru  v.  De  Breteuil,  179  N.  Y.  64  , 25,  82,  129 

Tienken,  Matter  of,  60  Hun,  417;  131  K  Y.  391.  ...106,  287,  288,  342,  344, 

345,  347 

Tierney  v.  Fitzpatrick,  195  N.  Y.  433 267 

Tiers  v.  Tiers,  98  K  Y.  568 50,  291 

Tilden  v.  Green,  130  N.  Y.  29 101,  163,  280,  291,  293,  308 

Tillman  v.  Davis,  95  N.  Y.  17 287 

Title  G.  &  T.  Co.,  Matter  of,  195  N.  Y.  339 308,  312 

Titus  v.  Weeks,  37  Barb.  136 47,  50,  128 

Tobias  v.  Ketchum,  32  N.  Y.  319 101,  292 

Tobin  v.  Graf,  39  Misc.  412 131 

Toher  v.  Crounse,  57  3Iisc.  252 47,  50 

Tolles  v.  Wood,  1  Abb.  N.  C.  1,  16 ;  99  N.  Y.  617 32 

Tompkins,  Matter  of,  154  N.  Y.  634  .  .67,  106,  146,  231,  308,  310,  311,  344 

Tompkins  v.  Verplanck,  10  App.  Div.  572 295 

Toms  v.  Williams,  41  Mich.  552 106,  128.  354,  355 

Toronto  G.  T.  Co.  v.  C.  B.  &  Q.  Co.,  123  N.  Y.  37 101,  267 

Torpy  v.  Betts,  123  Mich.  239  354 

Torrey  v.  Shaw,  3  Edw.  Ch.  355 342 

Totten,  Matter  of ,  179  N.  Y.  112 267 

Tower,  In  re,  49  Minn.  371 354,  355 

Towle  v.  Remsen,  70  K  Y.  303 89 

Towler  v.  Towler,  142  N.  Y.  371 28,  148,  163,  308 

Townshend  v.  Frommer,  125  N.  Y.  440  . .  .5,  32,  91,  94,  102,  105,  166,  247 

Trask  v.  Sturges,  170  N.  Y.  482  44,  157,  158,  168,  288,  309 

Traver,  Matter  of,  161  K  Y.  54 312 

Traver  v.  Schell,  20  N.  Y.  89 342 

Trolan  v.  Rogers,  79  Hun,  507 64 

Trotter,  Matter  of,  104  App.  Div.  1S8;  182  X.  Y.  465 42,  67,  68 

Trowbridge  v.  Metcalf,  5  App.  Div.  318;  158  N.  Y.  682 41,  94,  162 

277,  348 

Trufant  v.  Nunneley,  106  Mich.  554 354 

Trumble,  Matter  of,  199  N.  Y.  454 77 

Trunkey  v.  Van  Sant,  176  N.  Y.  535 291 

Truslow,  Matter  of,  140  N.  Y.  599 67,  312,  343 

Trustees  v.  Cowen,  4  Pai.  510 97 

Trustees  v.  Kellogg,  16  N.  Y.  83  311 


xliv  TABLE  OF  CASES, 

(References  are  to  pages.) 

Trustees  v.  Lynch,  70  N.  Y.  440 97 

Tucker  v.  Bishop,  16  N.   Y.  402 87,  94,  161,  248,  346 

Tucker  v.  Tucker,  5  N.  Y.  408 41,  156,  311 

Tuthill  v.  Davis,  121  App.  Div.  290  175 

Tweddell  v.  N.  Y.   Life  Ins.  &  T.  Co.,  49  App.  Div.  258,  aff'd  166 

N.  Y.  608 164,  173 

Tweddell  v.  N.  Y.  Life  Ins.  &  Trust  Co.,  82  Hun,  602 131 

Tyson  v.  Blake,  22  N.  Y.  558  265 

Tyson  v.  Tyson,  96  Wis.  59 355 

Ullman  v.  Cameron,  186  N.  Y.  339  32,  35,  116 

Underwood  v.  Curtis,  127  N.  Y.  523. . .  .21,  40,  72,  101,  247,  257,  266,  274 

275,  276,  287,  288,  291,  293,  310,  346 

Ungrich,  Matter  of,  48  App.  Div.  594,  aff'd  166  N.  Y.  618 208,  265 

Ungrich,  Matter  of,  201  N.  Y.  415 31,  32,  115 

United  States  v.  Gilmore,  8  Wall.  330 138 

U.  S.  Trust  Co.,  Matter  of,  175  N.  Y.  304 33 

U.  S.  Trust  Co.  v.  Black,  146  N.Y.I 312 

U.  S.  Trust  Co.  v.  Chauncey,  32  Misc.  358 63 

U.  S.  Trust  Co.  v.  Hogencamp,  191  N.  Y.  281 89,  235 

U.  S.  Trust  Co.  v.  Roche,  116  N.  Y.  120  109,  111,  162, 247 

U.  S.  Trust  Co.  v.  Soher,  178  N.  Y.  442 129,  130,  145,  146 

U.  S.  Trust  Co.  v.  Wheeler,  73  App.  Div.  289;  173  N.  Y.  631. . .  .342,  346 
Upington  v.  Corrigan,  151  N.  Y.  143 96,  209 

Vail  v.  L.  I.  R.  R.  Co.,  106  N.  Y.  283 96 

Vail  v.  Vail,  7  Barb.  226;  4  Pai.  317 10,  52 

Van  Axte  v.  Fisher,  117  N.  Y.  401 86,  106,  211,  316 

Van  Brunt  v.  Van  Brunt,  111  N.  Y.  178 44,  51,  67,  68,  70,  106 

Van  Buren  v.  Dash,  30  N.  Y.  393 292 

Van  Camp  v.  Fowler,  59  Hun,  311 106 

Van  Cott  v.  Prentice,  104  N  Y.  45. . .  .24,  28,  35,  36,  44,  45,  49,  51,  59,  63, 

99,  100,  101,  104,  108,  343 

Vanderbilt,  Matter  of,  20  Hun,  520 • 27,  59 

Vanderbilt,  Matter  of,  50  App.  Div.  246 ;  163  N.  Y.  597 154 

Vanderpoel  v.  Loew,  112  X.  Y.  167 64,  66,  68,  69,  71,  76,  88,  106,  156, 

309,  346 

Vanderzee  v.  Slingerland,  103  X.  Y.  47 343,  344,  345 

Van  Home  v.  Campbell,  100  N.  Y.  287 175 

Van  Nostrand  v.  Marvin,  16  App.  Div.  28;  161  N.  Y.  650 95,  106 

Van  Nostrand  v.  Moore,  52  N.  Y.  12 67,  309,  311 

Van  Rensselaer  v.  Van  Rensselaer,  113  N.  Y.  207 346 

Van  Schuyver  v.  Mulford,  59  N.  Y.  426 68,  291,  293 

Van  Vechten  v.  Keator,  63  N.  Y.  52 287,  288 

Van  Vechten  v.  Van  Veghten,  8  Pai.  104;  1  Sandf.  Ch.  395  .  .  .19,  41,  265 

291 
Verdin  v.  Slocum,  71  N.  Y.  345 100,  101 


TABLE  OF  CASES.  xlv 

(References  are  to  pages.) 

Vernon  v.  Vernon,  53  X.  Y.  351 76,  82,  100,  101,  145,  346 

Verplanck,  Matter  of,  91  X.  Y.  439 46,  67,  68,  71 

Yiele,  Matter  of,  35  App.  Div.  211 71,  146 

Yiele  v.  Keeler,  129  N.  Y.  190 150,  310 

Vincent  v.  Xewhouse,  83  X.  Y.  505 248,  287,  345,  347 

Von  Hesse  v.  MacKaye,  136  X.  Y.  114 28 

Voorbis  v.  Voorhis,  66  Misc.  78 27 


Wadd  v.  Hazelton,  137  X.  Y.  215 100 

Wadsworth  v.  Wadsworth,  12  X.  Y.  376 17,  97 

Wager  v.  Wager,  89  X.  Y.  161 272 

Wager  v.  Wager,  96  X.  Y.  164 175 

Wainwright  v.  Low,  132  N.  Y.  313 31,  35,  100 

Waldron,  Matter  of,  57  Misc.  275 285 

Walker,  Matter  of,  136  N.  Y.  20 285 

Walker  v.  Steers,  38  State  Rep.  654,  14  N.  Y.  Supp.  398 82 

Walker  v.  Taylor,  15  App.  Div.  452 42 

Wallace  v.  Berdell,  97  X.  Y.  13 99,  108 

Wallace  v.  Diebl,  202  X.  Y.  156 324 

Walsh  v.  Waldron,  63  Hun,  315;  135  X.  Y.  650  . .  .41,  48,  61,  67,  293,  307 
Walter  v.  Walter,  60  Misc.  383;  133  App.  Div.  893,  aff'd  197  X.  Y. 

606  41,   291 

Ward  v.  Ward,  105  X.  Y.  68. . .  .21,  22,  41,  64,  67,  68,  94,  101,  102,  149,  233 

Ward  v.  Ward,  23  Week.  Dig.  466  (see  105  X.  Y.  68) 64 

Warner  v.  Durant,  76  X.  Y.  133 76,  106,  270,  272,  341,  346 

Warner  v.  Jaffray,  96  X.  Y.  248 348 

Wasbbon  v.  Cope,  144  X.  Y.  287  310,  344 

Watkins  v.  Reynolds,  123  X.  Y.  211 43,  167 

Watts,  Matter  of,  68  App.  Div.  357. .    87 

Webb  v.  Sweet,  187  X.  Y.  172 320 

Webster  v.  Morris,  66  Wis.  364 Ill,  279,  355,  356 

Weeks  v.  Cornwell,  104  X.  Y.  325 101,  102,  107 

Weeks  v.  Frankel,  197  X.  Y.  304 108 

Weinstein  v.  Weber,  178  X.  Y.  94 147,  175 

Wells,  Matter  of,  113  X.  Y.  396 345 

Wells  v.  Brooklyn  Union  Elevated  Railroad  Co.,  121  App.  Div.  491; 

193  X.  Y.  641 287 

Wells  v.  Seeley,  47  Hun,  109 175 

Wells  v.  Squires,  117  App.  Div.  502;  191  X.  Y.  529.  .  .  .17,  76,  77,  256,266 

268,  270,  277 

Wells  v.  Wells,  88  X.  Y.  323 64,  67,  68,  287 

Wendt  v.  Walsb,  164  X.  Y.  154 35,  100,  102,  107,  175 

Westcott  v.  Cady,  5  Johns.  Ch.  334 312 

Wetmore  v.  Parker,  52  X.  Y.  450 280,  285 

Wetmore  v.  Porter,  92  X.  Y.  76 Ill,  267 


xlvi  TABLE  OF  CASES. 

(References  are  to  pages.) 

Wetmore  v.  Truslow,  51  N.  Y.  338 32,  101 

Wet  more  v.  Wetmore,  149  K  Y.  520;  162  N.  Y.  503 32 

Whalen,  Matter  of,  143  App.  Div.  743 356 

Wheeler  v.  Lester,  1  Bradf.  213 347 

Wheeler  v.  Ruthven,  74  N.  Y.  428 342 

White  v.  Howard,  46  K  Y.  144 280,  285,  287,  348 

White  v.  Miller,  71  N.  Y.  118 281 

Whitefield  v.  Crissman,  123  App.  Div.  233 139,  266,  273,  277 

Whitney  v.  Whitney,  63  Hun,  59 138 

Wieting  v.  Bellinger,  50  Hun,  324 78 

Wilher  v.  Wilber,  45  App.  Div.  158;  165  N.  Y.  451  17,  75,  150,  166, 

229,  245,  256,  312 

Wilcox,  Matter  of,  194  K  Y.  288  . .  .19,  27,  40,  42,  57,  58,  63,  73,  87,  143, 

202,  203,  208,  210,  213,  216,  217,  219,  221,  230,  232,  237,  239,  240,  246, 

247,  251,  254,  255,  257,  259,  261,  262,  263,  265,  274,  287,  291,  296,  301, 

302,  303,  304,  320,  337,  340 

Wiley,  Matter  of,  188  K  Y.  579 203 

Wilkin,  Matter  of,  183  N.  Y.  104 20,  156,  266,  273,  277 

Willetts  v.  Titus,  14  Hun,  554 132 

Willetts  v.  Willetts,  20  Abb.  N.  C.  471 ;  35  Hun,  401,  rev'd  103  N.  Y. 

650 102,  345 

Williams  v.  Boul,  101  App.  Div.  593;  184  N.  Y.  605  101,  310,  344 

Williams  v.  Conrad,  30  Barb.  524 291 

Williams  v.  Jones,  166  K  Y.  522  89,  235,  309,  311,  312,  344 

Williams  v.  Montgomery,  148  N.  Y.  519 17,  18,  22,  23,  76,  82,  256, 

270,  272,  274 

Williams  v.  Thorn,  70  N.  Y.  270 32,  259,  260 

Williams  v.  Williams,   8  K  Y.  525 131,  146,  281,  283 

Wilson  v.  Lynt,  30  Barb.  124 279 

Wilson  v.  Odell,  58  Mich.  533 128,  355 

Wilson  v.  White,  109  N.  Y.  59. . . 296,  301 

Wilson  v.  Wilson,  120  App.  Div.  581 292 

Woerz  v.  Rademacher,  120  N.  Y.  62 110 

Woodbridge  v.  Bockes,  59  App.  Div.  503;  170  K  Y.  596  ....25,  111,  175 

Woodgate  v.  Fleet,  44  N.  Y.  1 40,  85,  293 

Woodgate  v.  Fleet,  64  N.  Y.  566 45,  47,  55,  71,  72,  102,  291 

Woodruff  v.  Cook,  47  Barb.  304 223 

Woodruff  v.  Cook,  61  N.  Y.  638 220,  223,  232,  290 

Woodward  v.  James,  44  Hun,  95;  115  N.  Y.  346 59,  101,  108 

Wright  v.  Mayer,  47  App.  Div.  604 59 

Wright  v.  Mercein,  34  Misc.  414 50 

Wright  v.  Saddler,  20  N.  Y.  320 97 

Wright  v.  Trustees,  Hoffm.  Ch.  202 288 

Yates  v.  Yates,  9  Barb.  324 93,  131,  137,  281 

Young,  Matter  of,  145  N.  Y.  535 88,  94,  162,  166,  311 

Young  v.  Barker,  141  App.  Div.  801 295 


TABLE  OF  CASES.  xlvii 

(References  are  to  pages.) 

Young  v.  Heermans,  66  N.  Y.  374 32 

Young  v.  Young,  80  N.  Y.  422 99 

Young  v.  Young,  127  App.  Div.  130 28,  35 

Young's  Settlement,  In  re,  18  Beav.  199 77 

Young  Women's  Christian  Home  v.  French,  187  U.  S.  401 89 

Zahrt,  Matter  of ,  94  N.  Y.  605 292 

Zartman  v.  Ditmars,  37  App.  Div.  173 312,  346 


SUSPENSION 

OF    THE 


ABSOLUTE  POWEK  OF  ALIENATION, 


AND 


POSTPONEMENT  OF  VESTING. 


CHAPTER  I. 

INTRODUCTORY. 

The  Three  Rules. 

Rule      I.  Alienability. 

Rule    II.  Vesting. 

Rule  III.  Absolute  Ownership. 
Scope  op  the  Rules. 
Historical. 
Purposes  op  the  Rules. 

The  Three  Rules. 


§  1.  The  provisions  of  the  Real  Property  Law  furnish 
two  separate  Rules,  one  dealing  with  suspension  of  the 
absolute  power  of  alienation,  and  the  other  with  post- 
ponement of  the  vesting  of  certain  future  estates.  These 
Rules  are  as  follows: 

§  2.  Rule  I.  Alienability.  The  Power  of  Conveying 
the  Absolute  Fee,  in  Possession,  shall  not  be  Sus- 
pended BEYOND  THE  STATUTORY  PERIOD. 

§  3.  Under  this  rule,  two  points  call  for  special 
notice;  first,  that  it  affects  all  estates,  interests,  rights 

l 


2  INTRODUCTORY.  [CH.  I. 

and  possibilities,  of  every  character,  which  are  capable 
of  interfering  with  the  power  of  conveying  the  absolute 
fee  in  possession ;  secondly,  that  it  does  not  insist  upon 
vesting,  but  merely  upon  absolute  alienability. 

§  4.  Rule  II.  Vesting.  Estates  in  Remainder  shall 
be  so  Limited  that  within  the  Statutory  Period,  if 

EVER,  THEY  MUST  VEST  IN  INTEREST. 

§  5.  This  rule  is  thus  seen  to  apply  to  only  one  class 
of  future  estates,  namely,  "  remainders ;  "  but  to  insist 
not  only  on  absolute  alienability,  but  also  on  vesting, 
which  is  a  broader  term  and  (except  in  certain  cases  of 
vesting  in  trust)  includes  alienability. 

§  6.  The  Personal  Property  Law  furnishes  one  Rule, 
which  deals,  in  itself,  as  applied  to  personal  property, 
both  with  alienability  and  with  vesting.  This  rule  is 
as  follows : 

§  7.  Rule  III.  Absolute  Ownership.  The  Absolute 
Ownership  of  Personal  Property  shall  not  be  Sus- 
pended BEYOND  THE  STATUTORY  PERIOD. 

Scope  of  the  Rules. 

§  8.  The  absolute  power  of  alienation  is  suspended, 
under  Rule  I,  when  there  are  no  persons  in  being  by 
whom  an  absolute  fee  in  possession  can  be  conveyed. 
The  discussion  of  this  subject  will  accordingly  involve 
consideration  of  the  several  forms  of  disposition  by 
which  an  absence  of  such  persons  may  be  occasioned. 
One  such  form  consists  of  certain  express  trusts  under 
which  the  trustee  is  strictly  required  and  obliged  to 
retain  the  title,  and  for  that  reason  the  estate  cannot  be 
conveyed;  a  second  form  consists  of  certain  contingent 
future  estates,  actual  or  potential,  which,  because  not 
represented  by  any  persons  as  yet  in  being,  cannot  be 
conveyed;  and  a  third  form  consists  of  certain  powers 


§  10.]  SCOPE  OF  RULES.  3 

which  for  one  reason  or  another  prevent,  or  co-operate 
in  preventing,  an  absolute  conveyance.  Thus,  on  the 
one  hand,  the  mere  fact  that  an  estate  is  vested,  as  in 
the  case  of  an  express  trust,  does  not  necessarily  involve 
alienability;  and  on  the  other  hand,  the  mere  fact  that 
an  estate  is  contingent,  as  it  may  be  even  though  all  the 
persons  in  whom  it  can  possibly  vest  in  future,  under  the 
limitations  of  the  instrument,  are  now  in  being,  does 
not  necessarily  involve  inalienability.  In  other  words, 
the  test  of  suspension  of  the  power  of  alienation,  under 
Rule  I,  is  not  to  be  found  in  the  distinction  between 
vested  and  contingent  estates,  but  solely  in  the  exist- 
ence, or  non-existence,  of  persons  by  whom  an  absolute 
fee  in  possession  can  be  conveyed. 

§  9.  Under  Rule  II,  on  the  contrary,  which  relates  to 
remainders,  what  is  required  is  not  only  alienability, 
but  vesting.  The  mere  fact  that  an  estate  is  alienable, 
does  not  necessarily  imply  that  it  is  vested;  nor  does 
the  mere  fact  that  it  is  inalienable  necessarily  imply 
that  it  is  not  vested.  The  test  under  Rule  II  is  not  to 
be  found  in  the  distinction  between  alienable  and  non- 
alienable  remainders,  but  in  the  distinction  between 
remainders  which  are  vested  and  those  which  are  con- 
tingent. 

§  10.  The  mutual  relations  of  the  two  Rules  may 
therefore  be  summed  up  thus :  Rule  I  covers  the  entire 
field  of  estates,  and  of  such  interests,  rights  and  possi- 
bilities as  may  develop  into  estates.  But  although  its 
field  is  broad,  its  requirement  is  narrow.  It  calls  only 
for  absolute  alienabilitv.  Rule  II  is  confined  to  the 
restricted  field  of  remainders,  but  although  its  field  is 
narrow,  its  requirement  is  broad.  It  calls  for  vesting, 
and  thereby  (except  in  the  case  of  trusts  where  the 
estate  may  be  vested  and  yet  inalienable)  requires 
absolute  alienability  and  more  beside. 


4  INTRODUCTORY.  [CH.  I. 

§11.  Rule  III,  by  its  requirement  of  absolute  owner- 
ship, combines  in  itself,  as  applied  to  personal  property, 
the  two  Rules  which  relate  to  real  property,  and  thus 
deals  both  with  alienability  and  with  vesting. 

Historical. 

§  12.  In  the  preparation  and  enactment  of  the  Re- 
vised Statutes,  two  courses  were  open  to  the  Revisers 
and  the  Legislature.  For  on  any  given  topic  it  was 
possible,  on  the  one  hand,  to  set  forth  in  statutory  form 
certain  propositions,  not  covering  the  entire  ground, 
and  either  declaring  or  changing  the  common  law  in 
part,  and  thus  to  leave  the  common  law  in  force  as  such, 
except  as  thus  affected ; x  or  on  the  other  hand,  to  abro- 
gate, or  at  least  attempt  to  abrogate,  the  common  law 
on  a  large  scale,  and  establish,  upon  the  given  subject,  a 
code,  new,  complete  and  exclusive.  And  in  fact,  some- 
times one,  and  sometimes  the  other,  of  these  two  courses 
was  adopted.  The  law  in  relation,  for  example,  to 
powers,  was  thus  codified,2  so  that  "  the  prior  law  as  to 
powers  is  of  little  use  in  the  investigation  of  powers  as 
they  are  now  defined  and  authorized;     *     *     *     ."  3 

§  13.  On  the  other  hand,  in  the  case  of  express  trusts, 
the  Legislature  did  not  abolish  all,  and  then  create  cer- 
tain specified  classes  which  should  be  permitted;  but 
abolished  all  except  four,  and  left  those  four  standing, 
within  defined  limits.4 


1  Bertles  v.  Noonan,  92  N.  Y.  157. 

2  Cutting  v.  Cutting,  86  N.  Y.  522,  537,  544-7  ;  Real  Prop.  L.  §  130. 

3  Jennings  v.  Conboy,  73  N.  Y.  230,  233;  Hutton  v.  Benkard,  92  N.  Y. 
295,  305;  Sweeney  v.  Warren,  127  N.  Y.  426,  433;  Farmers' Loan  & 
Trust  Co.  v.  Kip,  192  N.  Y.  266,  275. 

*  Real  Prop.  L.  §  96;  Leggett  v.  Perkins,  2  N.  Y.  297,  307.  Compare 
Hawley  v.  James,  16  Wend.  61,  148,  163;  and  see  Chaplin  Express  Trusts 
and  Powers,  §§  395,  530,  531.  See  also  the  effect  of  subsequently  reviving 
a  fifth  class,  relating  to  charities.     Chapter  VIII.     And  as  to  trusts  of 


§  14.]  HISTORICAL.  5 

§  14.  But  even  where  the  intention  has  been  to  estab- 
lish a  new  and  exclusive  code,  the  prior  law  is  not,  of 
course,  thus  deprived  of  its  interest  or  value  in  connec- 
tion with  the  study  of  the  law  of  New  York.  For  on 
account  of  the  historical  relation  between  the  two  sys- 
tems, and  the  consequent  need  of  an  understanding  of 
the  earlier  for  the  light  it  throws  on  the  later,  we  must 
constantly  resort  to  the  common  law  for  explanations, 
and  for  definitions  and  rules  of  construction,  where  the 
statute  itself  is  deficient.1  Indeed,  under  our  legal  sys- 
tem, and  with  our  legal  traditions  and  methods  of 
thought,  it  must  always  be  excessively  difficult,  if  not 
impossible,  on  any  given  subject,  to  make  a  general 
codification  which  shall  be  entirely  exhaustive  and  ex- 
clusive; and  on  points  not  covered  by  the  statutes  the 
courts  seek  for  light  in  the  prior  law,  in  so  far  as  con- 
sistent with  the  scheme  of  the  statute.  Even  in  the 
case  of  so  successful  a  codification  as  that  of  the  law  of 
powers,  it  has  been  held  that  there  was  no  attempt, 
in  the  Revision,  to  enumerate  or  define  all  the  acts 
which  might  lawfully  be  done  under  a  power.2  And 
in  Mutual  Life  Ins.  Co.  v.  Shipman,3  the  court  refer  to 
the  prior  law  of  powers,  and  quote  from  Sugden,  Kent, 
and  Perry,  to  show  the  existence  of  a  principle  in  the 
light  of  which  they  construe  one  of  the  sections  of  the 
article  on  Powers,  saying  that  it  had  been  established 
long  before  the  enactment  of  our  Revised  Statutes,  and 
was  in  the  immediate  contemplation  of  the  Revisers 
when  they  framed  the  section  in  question.4 


personal  property,  Tabernacle  Church  v.  Fifth  Ave.  Church,  60  App. 
Div.  327,  334,  aff'd  172  N.  Y.  598. 

1  Hawley  v.  James,  16  Wend.  61,  148. 

2  Downing  v.  Marshall.  23  N.  Y.  366,  379-380. 
8 119  N.  Y.  324,  328,  329. 

4  See  also  Barber  v.  Cary,  11  N.  Y.  397,  402;  Sweeney  v.  Warren,  127 
N.  Y.  426,  433;  Darling  v.  Rogers,  22  Wend.  483,  495-496;  Townshend 
v.  Frommer,  125  N.  Y.  446,  465. 


6  INTRODUCTORY.  [CH.  I. 

§  15.  Now  there  are  no  express  adjudications  upon 
the  status  of  the  enactments  embodied  in  the  three  Rules 
already  set  forth,  as  either  merely  amending  the  prior 
law  in  part  and  thus  leaving  it  in  force  except  as  so 
changed;  or  constituting  a  new  and  complete  codifica- 
tion substituted  for  the  entire  body  of  the  earlier  law 
thus  repealed.  But  from  the  comprehensive  and  de- 
tailed nature  of  the  statutory  scheme,  it  appears  quite 
certain  that  the  intended,  and  accomplished,  result  was 
to  deal  with  the  entire  subject  in  all  its  general  phases, 
and  in  particular  to  provide  a  "  statutory  period  "  for 
every  possible  form  of  suspension  of  alienability  or 
postponement  of  vesting,  leaving  no  opportunity  for  re- 
course to  the  common  law  for  a  further  extension  or  a 
different  measure  of  the  term. 

§  16.  In  addition,  it  is  evident  that  the  scheme 
adopted  by  the  Revisers,  in  dealing  specifically  with 
suspension  of  alienability,  and  postponement  of  vest- 
ing, has  relieved  us,  in  New  York,  from  the  search  after 
the  true  and  exact  nature  of  the  common  law  "  per- 
petuity." Some  learned  writers  both  in  England  and 
America,  have  held,  as  applied  to  the  period  of  the  prep- 
aration and  enactment  of  our  Revised  Statutes,  that 
the  Rule  against  Perpetuities  was  nothing  whatever  but 
a  rule  against  undue  suspension  of  the  power  of  aliena- 
tion (thus  dealing  with  the  same  subject  covered  by 
our  Rule  I)  and  except  in  that  sense  had  nothing  to  do 
with  remoteness  of  vesting  merely  as  such,  and  that  it 
was  only  later  that  it  came  to  have  a  direct  relation  to 
remoteness  of  vesting.  From  this  proposition,  the  argu- 
ment is  sometimes  derived  that  the  Revisers  must  have 
understood  the  subject  of  Perpetuities  as  strictly  con- 
fined to  suspension  of  the  power  of  alienation.  The 
New  York  writers  above  referred  to,  direct  special 
attention   in   their   works  to   the   statutes   which   are 


§  19.]  HISTORICAL.  7 

embodied  in  Kule  II,  above.  In  accordance  with  what 
they  consider  the  great  weight  of  authority,  they  re- 
gard them  merely  as  not  coming  under  the  head  of 
perpetuities. 

§  17.  On  the  other  hand,  Mr.  Marsden,  Mr.  Lewis, 
and  Professor  Gray  all  maintain,  as  applied  to  the  time 
in  question,  that  the  English  Rule  against  Perpetuities, 
though  not  fully  developed  in  all  its  details,  was  a  rule 
applicable  to  remoteness  of  vesting;  and  in  any  event, 
and  whatever  the  English  Rule  against  Perpetuities 
may  have  been  earlier,  it  did  at  any  rate  come  eventu- 
ally, even  if  not  until  after  the  time  of  our  Revision, 
to  have  relation  to  postponement  of  vesting. 

§  18.  But  with  us  all  this,  except  as  applied  to  in- 
struments governed  by  the  law  as  it  existed  prior  to  our 
Revision,  is  now  quite  immaterial,  and  a  mere  matter 
of  names.  Our  statutes  do  not  use  the  term  perpetui- 
ties. What  they  do,  is  to  furnish  various  provisions 
covering,  separately,  the  two  subjects  of  suspension  of 
alienability,  and  postponement  of  vesting,  as  embodied 
in  the  Rules  above  set  forth.  Whether  we  should  re- 
gard these  several  statutes,  taken  together,  as  intended 
to  form  a  revised  and  modified  Rule  against  Perpetui- 
ties, in  both  the  senses  referred  to;  or  regard  those  re- 
lating to  alienability,  or  those  relating  to  vesting,  as 
being,  one  or  the  other,  the  special  successor  of  the 
common  law  Rule ;  appears  to  be  of  no  practical  conse- 
quence. The  important  fact  is,  that  all  the  statutes 
referred  to  are  on  the  books  and  in  force;  that  they 
cover  all  cases  under  the  two  subjects,  and  that  their 
effect  is  as  embodied  in  the  Rules  set  forth  above. 

§  19.  Rule  I,  Alienability,  and  Rule  II,  Vesting,  were 
formulated  and  stated  in  the  first  edition  of  this  book, 


8  INTRODUCTORY.  [CH.  I. 

in  the  same  terms  as  in  the  present  edition;  and  here, 
as  there,  the  terms  "  perpetuity  "  and  "  remoteness  " 
have  been  avoided  in  all  references  to  the  New  York 
statutes,  because  their  use,  under  the  circumstances 
already  set  forth,  would  tend  to  uncertainty  and  con- 
fusion.1 But  for  the  general  light  which  may  be  thrown 
upon  our  statutes  by  the  earlier  law,  some  further  con- 
sideration of  its  history  is  set  forth  in  Chapter  VI  of 
this  volume. 

The  Purposes  of  the  Rules. 

§  20.  The  reasons  for  the  existence  of  the  respective 
Rules  relating  to  Alienability  and  to  Vesting,  all  arise 
out  of  considerations  of  public  policy.  Some  of  these 
reasons  apply  to  both  Rules,  and  in  addition  each  of  the 
Rules  is  intended  to  attain  certain  ends  peculiar  to 
itself. 

§  21.  In  respect  to  Rule  I,  concerning  suspension  of 
the  absolute  power  of  alienation,  the  main  purpose  is 
to  confine  within  specified  limits  the  period  during 
which  property  may  be  so  tied  up  that  it  cannot  come 
upon  the  market,  or  cannot  be  freed  from  its  special 
character  as  an  "  estate  "  or  "  fund  "  and  restored  to 
the  status  of  ordinary  property  owned  outright  by  in- 
dividuals who  can  sell  or  spend  it.  The  general  theory 
of  this  Rule  is,  that  the  public  interest  is  not  advanced 
by  allowing  the  owner  of  property  unlimited  oppor- 
tunity, in  granting  or  devising  it,  to  render  it  there- 
after inalienable,  or  to  prevent  the  use  or  dissipation  of 
the  fund  or  estate  which  it  makes  up ;  and  that  the  use- 
ful protection  which  such  efforts  may  sometimes  afford 
to  those  who  need  protection,  is  more  than  offset  by  the 
unfortunate  disturbance  of  normal  conditions,  not  only 


1  Matter  of  Wilcox,  194  N.  Y,  288,  298-299. 


§  23.]  THE  PURPOSES  OF  THE  RULES.  9 

in  relation  to  the  movement  of  property  on  the  market, 
and  its  development  and  improvement,  but  also  in  its 
effect  on  the  independence  of  character  and  personal 
initiative  of  the  persons  protected.  It  seeks,  therefore, 
while  recognizing  the  frequent  propriety  of  such  in- 
terferences in  given  instances,  to  restrict  them  within 
natural  and  appropriate  boundaries.  Thus  the  owner 
of  property  may  suspend  the  power  of  alienation  during 
the  lives  of  any  two  persons  living  when  the  disposition 
is  made,  and  by  dividing  his  property  into  shares,  may, 
as  to  each  share,  effect  such  suspension  for  two  lives  in 
being;  and  to  allow  further  leeway,  the  statute  per- 
mits such  arrangements  to  continue,  in  certain  special 
cases,  during  a  further  minority. 

§  22.  In  respect  to  Rule  II,  concerning  the  postpone- 
ment of  vesting,  there  are  many  reasons  why  it  should 
exist  in  the  form  of  the  present  statutes  which  it  em- 
bodies. For  in  other  jurisdictions  where  a  similar  rule 
now  exists,  experience,  as  represented  in  the  gradual 
growth  of  the  rule  from  its  earlier  form,  has  proved  the 
development  to  be  a  wise  one.  The  aggregate  value  to 
their  owners,  of  successive  estates  making  up  a  fee,  is 
far  greater  if  they  are  all  vested  than  if  some  are  con- 
tingent even  though  alienable,1  and  in  view  of  the  rela- 
tively great  interest  in  such  questions,  of  minors  and 
of  others  inexperienced  in  affairs,  or  incompetent,  this 
feature  has  a  direct  public  application. 

§  23.  And  then  the  possible  continued  existence, 
throughout  long  periods,  of  contingent  rights  and  pos- 
sibilities, tends  to  increase  litigation.  Such  litigation, 
likely  to  be  instituted  when  it  may  have  become  diffi- 
cult to  obtain  the  best  evidence  of  intent,  in  given  cases, 
is  not  calculated  to  attain  just  results,  and  all  litiga- 
tion entails  heavy  public  expense. 

1  Gray,  Perpetuities,  2nd  Ed.  §  268. 


10  INTRODUCTORY.  [CH.  I. 

§  24.  So,  too,  the  spirit  engendered  by  remote  possi- 
bilities of  acquiring  property  at  distant  periods  by  mere 
luck,  or  chance  happenings,  as  distinguished  from  ap- 
propriate allowance  of  due  provision  for  persons  in 
being,  or  for  infants,  is  distinctly  of  a  nature  injurious 
to  the  community.  And  here  we  may  apply  what  Chan- 
cellor Walworth  said  concerning  the  law  of  accumula- 
tions : 1  "  there  are  no  surer  means  of  paralyzing  the 
exertions  and  destroying  the  future  usefulness  of  a 
legatee,  than  to  hold  out  to  him  the  prospect  of  great 
wealth  for  himself  or  his  children,  at  some  distant 
period,  without  the  exercise  of  ordinary  industry  and 
enterprise  in  obtaining  it." 

§  25.  And  further,  where  future  interests  are  uncer- 
tain, and  during  long  periods  no  one  is  assured  of  abso- 
lute ownership,  property  is  not  likely  to  be  as  well  de- 
veloped and  cared  for,  from  the  point  of  view  of  the 
public  interest.2  And  the  postponement  of  vesting 
tends  to  introduce  considerable  uncertainty  and  con- 
fusion into  the  administration  of  the  law,  as  for  ex- 
ample in  the  law  relating  to  taxes  on  successions,  or  to 
involve  danger  of  arbitrary  and  unfair  methods  in 
efforts  to  avoid  such  uncertainty.  If  the  contingencies 
might  continue  indefinitely,  the  difficulty  in  collecting 
taxes  of  this  nature,  under  fair  regulations,  would  be 
greatly  increased. 

§  26.  The  law  always  favored  vesting  and  the  weight 
of  this  principle  is  not  impaired  by  the  fact  that  some 
of  the  former  reasons  for  it  have  disappeared;  others 
have  taken  their  places. 

§  27.  All  these  reasons  support  Rule  II,  in  addition 
to  the  special  and  technical  reasons  which  co-operated  in 

1  Vail  v.  Vail,  4  Pai.  317,  332. 

2  Gray,  Perpetuities,  2nd  Ed.  §  268. 


§  28.]  THE  PURPOSES  OF  THE  RULES.  11 

bringing  about  the  enactment  of  some  of  the  statutes 
embodied  in  the  Rule.  And  in  order  to  obviate  these 
difficulties,  and  at  the  same  time  allow  appropriate  op- 
portunity to  the  owner  of  property  to  adapt  his  plans 
to  the  special  circumstances  he  has  to  deal  with,  the 
statutes  fix  again,  as  in  the  case  of  Rule  I,  upon  an 
authorized  term  for  the  suspension  of  vesting,  of  two 
lives  in  being,  and  in  certain  special  cases  a  further 
minority.  '±he  subjects  discussed  under  the  present 
subdivision,  are  further  considered  in  §§  31-36,  and  in 
Chapter  VI. 

§  28.  Rule  III,  concerning  suspension  of  the  abso- 
lute ownership  of  personal  property,  and  thus  embody- 
ing provisions  in  relation  both  to  alienability  and  to 
vesting,  rests  on  reasons  similar  to  those  which  support 
the  statutes  represented  by  Rule  I  and  Rule  II. 


CHAPTER  II. 

GENERAL    PRINCIPLES. 

Alienability.     The  General  Statutory  Provision. 
The  Absolute  Power  of  Alienation. 
No  Persons  in  Being. 
The  Statutory  Period. 

The  Creation  of  the  Estate. 

Two  Lives  in  Being. 

Two  Lives  the  Necessary  Measure.     Exception. 

Designation  of  the  Lives. 

Any  Two  Lives  may  be  Designated. 

Part  of  aLife  is  a  Life. 

A  Minority  is  a  Life. 

The  Period  of  Gestation. 

Life  of  Eldest  or  Youngest  Surviving  Child. 

Life  of  Wife,  Widow,  Husband. 

The  Additional  Term  of  Minority. 

The  Statutory  Requirement  is  Imperative. 

Subordinate  Measures  of  Period  when  Permitted. 

Alternative  Lives,  when  Permitted. 

Successive  Suspensions  under  Successive  Instruments. 

Separate  Statutory  Periods  for  Separate  Shares. 

Number  of  Beneficiaries  is  not  Limited. 

Illegal  Term  is  not  Presumed. 

The  Statutory  Period  for  Contingencies. 

The  Statutory  Period  for  Trusts  to  Apply  Rents. 

The  Statutory  Period  for  Trusts  to  Accumulate  Rents. 

The  Statutory  Period  as  to  Powers. 

The  Statutory  Period  as  to  Chattels  Real. 

The  Statutory  Period  as  to  Disposition  of  Rents. 

The  Statutory  Period  for  Postponement  of  Vesting. 

The  Statutory  Period  as  to  Personal  Property. 
Certain  Dispositions  Not  Affected. 

§  29.  The  relations  between  the  Rules  now  to  be  dis- 
cussed, and  between  the  various  subdivisions  into  which 
the  discussion  naturally  divides  itself,  make  it  conveni- 

12 


§  32.]      THE  "ABSOLUTE  POWER  OF  ALIENATION."  13 

ent  to  take  up  for  consideration  at  this  point  certain 
subjects  of  a  more  or  less  general  application. 

Alienability.     The  General  Statutory  Provision. 

§  30.  The  principal  statutory  provision  upon  which 
Rule  I,  relating  to  Alienability,  is  founded,  is  as  fol- 
lows : 

"  The  absolute  power  of  alienation  is  suspended, 
when  there  are  no  persons  in  being  by  whom  an  abso- 
lute fee  in  possession  can  be  conveyed.  Every  future 
estate  shall  be  void  in  its  creation,  which  shall  suspend 
the  absolute  power  of  alienation,  by  any  limitation  or 
condition  whatever,  for  a  longer  period  than  during  the 
continuance  of  not  more  than  two  lives  in  being  at  the 
creation  of  the  estate;  except  that  a  contingent  remain- 
der in  fee  may  be  created  on  a  prior  remainder  in  fee, 
to  take  effect  in  the  event  that  the  persons  to  whom  the 
first  remainder  is  limited,  die  under  the  age  of  twenty- 
one  years,  or  on  any  other  contingency  by  which  the 
estate  of  such  persons  may  be  determined  before  they 
attain  full  age.  For  the  purposes  of  this  section,  a 
minority  is  deemed  a  part  of  a  life,  and  not  an  absolute 
term  equal  to  the  possible  duration  of  such  minority."  x 

The  "  Absolute  Power  of  Alienation." 

§  31.  Notwithstanding  the  apparent  simplicity  of  the 
definition  with  which  this  statutory  provision  begins, 
the  term  "  suspension  of  the  absolute  power  of  aliena- 
tion "  is  in  fact  employed  in  three  somewhat  different 
senses,  which  should  now  be  considered: 

§  32.  (1)  For  in  the  first  place,  and  in  a  literal  and 
very  obvious  sense,  it  is  applied  to  cases  where  parti cu- 


1  Real  Prop.  L.  §  42. 


14  GENERAL  PRINCIPLES.  [CH.  II. 

lar  designated  property  is  subjected  to  some  trust,  con- 
tingency or  other  provision  such  as  to  cause  inalien- 
ability, and  accordingly  the  "  absolute  power  of  aliena- 
tion," as  applied  to  that  particular  property,  is  sus- 
pended.1 

§  33.  (2)  In  the  second  place,  the  term  is  applied 
to  cases  where,  though  the  particular  property  actually 
designated  in  the  instrument  and  originally  transferred 
by  it  is  in  itself  rendered  alienable,  yet  the  instrument 
does  impose  on  the  proceeds  of  any  sale  of  that  prop- 
erty, or  on  any  property  that  may  be  taken  in  exchange, 
some  trust,  contingency  or  other  provision  such  as  to 
render  the  same  inalienable.  In  such  a  case  the  abso- 
lute power  of  alienation,  as  applied  to  the  original  prop- 
erty itself,  is  not  suspended,  but  as  applied  to  that 
which  may  be  substituted  for  it,  and  the  very  identity  of 
which  is  not  yet  ascertained,  it  is  suspended,  and  as  the 
sale  or  exchange  of  the  original  property  can  only  re- 
sult in  rendering  the  substituted  property  inalienable, 
the  term  of  suspension  must  be  duly  limited  as  from  the 
creation  of  the  original  estate.  Illustrations  of  such 
cases  are  given  in  §§  45,  46. 

§  34.  (3)  The  third  meaning  of  the  term  does  not 
relate  to  suspension  as  applied  to  any  particular  prop- 
erty at  all,  either  original  or  substituted,  but  only  as 
applied  to  estates  or  funds,  as  such,  as  distinguished 
from  the  particular  lands,  securities,  or  other  proper- 
ties, in  which  they  are,  or  from  time  to  time  may  be, 
invested.  Such  cases  exist  when  there  is  a  trust  or  con- 
tingency sufficient,  if  considered  alone,  to  cause  sus- 
pension, but  in  fact  accompanied  by  a  continuing  power 
to  sell  and  re-sell,  exchange  and  re-exchange,  during 
the  term.     This  power  obviates  suspension  as  to  any 


1  Chapters  III,  IV  and  V. 


§  36.]        THE  "ABSOLUTE  POWER  OF  ALIENATION."  15 

particular  property,  but  so  long  as  the  estate  or  fund 
itself  is  subject  to  the  same  trust  or  contingency,  the 
absolute  power  of  alienation,  in  the  sense  of  the  sta- 
tute, is  suspended.1  The  identity  of  the  fund  itself  con- 
tinues in  spite  of  changes  in  the  form  of  its  investment, 
and  is  subject  as  such  to  suspension  of  the  power  of 
alienating  it;  its  identity  is  like  that  which  a  river 
maintains,  while  its  waters  change,  and  the  rules  of 
navigation  continue  to  apply  to  the  river  as  such.2 

§  35.  If  the  estate  in  question  is,  or  becomes,  person- 
alty, the  term  then  employed,  as  applied  to  either  of 
the  three  cases  just  considered,  is  "  suspension  of  abso- 
lute ownership."  3 

§  36.  The  "  mischief  "  which  the  statute  aims  to  pre- 
vent under  the  first  two  senses  of  the  term  in  question, 
is  different  from  that  which  it  aims  to  prevent  under 
the  third.  The  general  reason  why  suspension  of  the 
absolute  alienability  of  particular  property,  original  or 
substituted,  is  forbidden,  beyond  the  "  statutory  period," 
is  that  it  is  considered  undesirable  in  the  public  inter- 
est to  have  particular  property  so  tied  up,  for  an  in- 
definite period,  that  in  the  meantime  it  cannot  be 
brought  upon  the  market;  and  the  reason  why  suspen- 
sion of  the  absolute  alienability  of  an  estate  or  fund, 
as  such,  is  forbidden,  beyond  the  statutory  period,  is 
that  it  is  considered  undesirable,  in  the  public  inter- 
est, to  have  a  given  amount  of  wealth  so  tied  up,  for 
an  indefinite  period,  that  in  the  meantime  though  sub- 
ject to  exchange,  or  a  sort  of  barter,  it  is  withdrawn 
from  the  normal  condition  in  which,  as  an  estate,  it 


'Hawley  v.  James,  5  Pai.  318,  444-5. 

2  Allen  v.  Allen,  149  N.  Y.  280,  288  :  Hooker  v.  Hooker,  166  N.  Y.  156  ; 
Kalisk  v.  Kalish,  166  N.  Y.  368  ;  Hawley  v.  James,  5  Pai.  318,  445.  Illus- 
trations of  this  class  are  given  in  §  46. 

3  See  Chapters  VII  and  IX. 


16  GENERAL  PRINCIPLES.  [CH.  II. 

may  be  spent  and  ended.  Supra,  §§  20-28.  For  though 
such  a  suspension,  if  duly  limited  in  purpose  and  term, 
may  be  beneficent,  yet  being  abnormal  it  would  tend,  in 
the  course  of  time,  if  unlimited,  to  become  an  engine  for 
the  injury  of  its  intended  beneficiaries  and  of  the 
public. 

§  37.  In  view  of  the  fact  that  the  existence  of  "  sus- 
pension of  the  absolute  power  of  alienation  "  consists 
in  the  fact  that  there  are  "  no  persons  in  being  "  by 
whom  an  absolute  fee  in  possession,  in  the  sense  already 
discussed,  can  be  conveyed,  it  is  impossible  to  wholly 
separate  the  two  terms  in  the  treatment  of  the  general 
subject.  We  now  have  stated  the  general  meanings  of 
the  former  term,  and  the  remainder  of  the  discussion 
will  be  taken  up  in  the  next  subdivision. 

"  No  Persons  in  Being." 

§  38.  "  The  absolute  power  of  alienation  is  suspended 
when  there  are  no  persons  in  being  by  whom  an  abso- 
lute fee  in  possession  can  be  conveyed."  x  This  brief 
definition  contains  several  elements  the  exact  meaning 
of  which  can  only  be  determined  by  careful  analysis 
and  classification  of  the  authorities.  The  term  "  abso- 
lute power  of  alienation,"  in  its  several  general  senses, 
has  been  considered  in  preceding  sections.  The  remain- 
ing points  which  require  special  study  will  now  be  ex- 
amined. And  in  discussing  these  matters,  it  will  be 
convenient  first  to  state  certain  well  settled  general 
propositions,  and  afterwards  to  take  up  other  features 
involving  more  complication  and  difficulty. 

§  39.  Wherever,  then,  there  is  in  being  a  representa- 
tive for  each    estate,    interest,    right    and    possibility, 


iReal  Property  Law,  §  42. 


§39.]  "  NO  PERSONS  IN  BEING."  17 

present  and  future,  vested  and  contingent,  each  cap- 
able of  alienating,  at  his  option,  the  estate  or  interest 
represented  by  him,  there  can  be  no  suspension  of  the 
absolute  power  of  alienation,  under  Rule  I.1  For  the 
various  estates,  interests,  and  possibilities  constitute 
amongst  them  the  makings  of  an  absolute  fee;  and  if, 
by  releases,  or  conveyances,  these  can  all  be  consoli- 
dated in  one,  the  consolidated  estate  thus  formed  would, 
of  necessity,  be  an  absolute  fee  in  possession.  In  other 
words,  in  order  to  avoid  a  suspension  of  alienability,  it 
is  sufficient  if  there  are  persons  in  being  who,  by  com- 
bining the  several  estates,  rights,  interests  and  possi- 
bilities that  they  represent  or  are  authorized  to  speak 
for,  can,  if  they  all  wish  to,  patch  together  an  absolute 
fee.2  And  on  the  other  hand,  if  there  is  anv  interest  or 
possibility,  which  in  effect  constitutes  part  of  the  make- 
up of  an  absolute  fee,  and  which  for  any  reason  is  not 
represented  by  a  person  capable  of  alienating  it  in  the 


1  §  2.  But  this  test  of  validity  is  not  applicable  to  Rule  II.  See  §  4, 
which  relates  to  vesting. 

'-'  Mott  v.  Ackerman,  92  N.  Y.  550  ;  Everitt  v.  Everitt,  29  N.  Y.  39,  77 
et  seq.  ;  Emmons  v.  Cairns,  3  Barb.  243,  248  ;  Norris  v.  Beyea,  13  N.  Y. 
273,  289  ;  Greenland  v.  Waddell,  116  N.  Y.  234,  246  ;  Williams  v.  Mont- 
gomery, 148  N.  Y.  519;  Nellis  v.  Nellis,  99  N.  Y.  505,  516;  Genet  v. 
Hunt,  113  N.  Y.  158,  172;  Wilber  v.  Wilber,  165  N.  Y.  451;  Wells  v. 
Squires,  117  App.  Div.  502,  aff'd  191  N.  Y.  529;  Steinway  v.  Stein-way, 
163  N.  Y.  183;  Fowler  v.  Ingersoll,  127  N.  Y.  472,  477;  Murphy  v. 
Whitney,  140  N.  Y.  541;  Mills  v.  Mills,  50  App.  Div.  221;  Matter  of 
N.  Y.,  L.  &  W.  R.  R.  Co.,  105  N.  Y.  89,  96;  Garvey  v.  McDevitt,  72  N.  Y. 
556,  563;  Farrar  v.  McCue,  89  N.  Y.  139,  146;  Hunter  v.  Hunter,  17 
Barb.  25,  90.  As  to  the  principles  applicable  to  suspension  of  the  absolute 
ownership  of  personal  property,  see  Chapter  VII.  As  to  the  effect  of 
alienage,  see  Real  Prop.  L.  §§  10,  subd.  2;  14,  15;  Decedent  Estate  Law, 
§  13;  Hall  v.  Hall,  81  N.  Y.  130;  Wadsworth  v.  Wadsworth,  12  N.  Y. 
376;  Beck  v.  McGillis,  9  Barb.  35;  McGillis  v.  McGillis,  154  N.  Y.  532; 
Haley  v.  Sheridan,  190  N.  Y.  331;  Hauenstein  v.  Lynham,  100  U.  S.  483; 
Geofroy  v.  Riggs,  133  U.  S.  258;  Hoey  v.  Kenny.  25  Barb.  396;  Dempsey 
v.  Tylee,  3  Duer,  73,  98,  101,  102;  DeBarantev.  Gott,  6Barb.  492;  Parker 
v.  Linden,  113  N.  Y.  28,  37;  Hayden  v.  Sugden,  48  Misc.  108;  Duke  of 
Cumberland  v.  Graves,  9  Bail).  595 ;  Douglass  v.  Douglass,  70  Misc.  412 ; 
Richardson  v.  Amsdon,  85  N.  Y.  Supp.  342. 


18  GENERAL  PRINCIPLES.  [CH.  II. 

sense  intended  by  the  statute,  then  an  absolute  fee  in 
possession  cannot  be  conveyed,  and  there  is  a  suspen- 
sion of  the  absolute  power  of  alienation. 

§  40.  Thus,  for  example,  a  contingent  future  estate 
or  interest  which  is  so  limited  that  by  the  terms  of  its 
creation  it  may  yet  vest  in  persons  not  now  in  being, 
occasions  a  suspension  of  the  absolute  power  of  aliena- 
tion, because  there  are  "  no  persons  in  being  "  who  can 
effect  an  absolute  conveyance  of  it.1  And  so  also  there 
are  certain  express  trusts  under  which  the  trustee,  who 
holds  the  legal  title,  cannot  alien  while  the  trust  en- 
dures, and  the  beneficiaries  cannot  terminate  the  trust, 
and  thus  there  is  a  suspension  of  the  absolute  power  of 
alienation  because,  although  every  estate  and  interest 
may  be  represented  by  "  persons  in  being,"  there  are  no 
persons  in  being  "  by  whom  an  absolute  fee  in  posses- 
sion can  be  conveyed."  2  Similar  principles  also  explain 
the  relation  of  certain  "  powers  "  to  suspension  of  the 
power  of  alienation.3 

§  41.  In  order  to  obviate  suspension  of  the  power  of 
alienation,  it  is  not  necessary  that  all  the  outstanding 
possibilities  should  be  capable  of  conveyance  or  assign- 
ment. It  is  enough  that  they  may  be  released  or  in  any 
manner  extinguished  or  got  out  of  the  way,  so  that  the 
fee  may  be  cleared  of  all  features  that  deprive  it  of  its 
absolute  character,  and  rendered  absolute  and  indefeas- 
ible.4 

§  42.  So,  further,  if  an  instrument,  the  provisions  of 
which  would  otherwise  occasion  a  suspension  of  the 


1  Chapter  III. 

2  Chapter  IV. 

3  Chapter  V. 

4  Beardsley  v.  Hotchkiss,  96  N.  Y.  214;  Everitt  v.  Everitt,  29  N.  Y.  39, 
77,  78;  Miller  v.  Emails,  19  N.  Y.  384;  Garvey  v.  McDevitt,  72  N.  Y.  563; 
Emmons  v.  Cairns,  3  Barb.  243,  248 ;  Sawyer  v.  Cubby,  146  N.  Y.  192 ; 
Williams  v.  Montgomery,  148  N.  Y.  519. 


§  44.]  "NO  PERSONS  IN  BEING."  19 

power  of  alienation  of  designated  real  property,  also 
confers  an  unrestricted  power  to  absolutely  alien  the 
property  in  fee,  it  follows  that  the  power  of  alienation, 
as  applied  to  the  particular  property  designated  in  the 
instrument,  is  not  suspended  at  all,  because  there  are 
persons  in  being  by  whom  an  absolute  fee  in  possession 
can  be  conveyed.1  For  it  is  only  sales  "  in  contraven- 
tion of  the  trust "  that  are  prohibited.  If  a  sale  is 
authorized  by  the  instrument  creating  the  trust,  it  can- 
not be  in  contravention  thereof. 

§  43.  And  if  such  a  power  of  sale  is  coupled  wTith 
merely  discretionary  authority  to  defer  an  actual  sale, 
this  authority  does  not  interfere  with  the  effect  of  the 
power  in  obviating  suspension.  The  power  to  sell  is 
not  fettered  by  the  discretionary  authority  to  defer  exe- 
cution of  it ; 2  nor  by  a  mere  suggestion  that  the  exer- 
cise of  the  power  be  postponed ; 3  nor  by  the  necessity 
of  taking  some  unmeasured  time  in  order  to  sell  to  good 
advantage,  if  the  power  to  sell  is  not  suspended.4 

§  44.  And  so,  on  the  same  principle,  if  there  is  an 
unrestricted  power  both  to  sell  the  original  property 


iBlanchard  v.  Blanchard,  4  Hun,  287,  aff'd  70  N.  Y.  615;  Belmont  v. 
O'Brien,  12  N.  Y.  394,  404-5;  Haynes  v.  Sherman,  117  N.  Y.  433,  438; 
Stoiberv.  Stoiber,  40  App.  Div.  156;  Robert  v.  Corning,  89  N.  Y.  225, 
235-6,  239;  Henderson  v.  Henderson,  113  N.  Y.  1,  12;  Stewart  v.  Hamilton, 
37  Hun,  19;  Hope  v.  Brewer,  136  N.  Y.  126,  135;  Deegan  v.  Wade,  144 
N.  Y.  573,  576;  Betts  v.  Betts,  4  Abb.  N.  C.  317;  Matter  of  Wilcox,  194 
N.  Y.  288,  305;  Heermans  v.  Robertson,  64  N.  Y.  332,  and  dissenting 
opinion  of  Earl,  J. ;  Van  Vecbten  v.  Van  Veghten,  8  Pai.  122;  Matteson  v. 
Armstrong,  11  Hun,  245,  249. 

2  Robert  v.  Corning,  89  N.  Y.  225;  Matter  of  Wilcox,  194  N.  Y.  288, 
305;  Henderson  v.  Henderson,  113  N.  Y.  1 ;  Dillenbeck  v.  Dillenbeck,  134 
App.  Div.  720;  Hope  v.  Brewer,  136  N.  Y.  126,  135;  Deegan  v.  Wade, 
144  N.  Y.  573,  576;  Cruikshank  v.  Home  for  Friendless,  113  N.  Y.  337. 

3Chanler  v.  N.  Y.  El.  R.  R.  Co.  34  App.  Div.  305.  See  further 
Chapter  V. 

4 Deegan  v.  Wade,  144  N.  Y.  573;  Chanler  v.  N.  Y.  El.  R.  R.  Co.,  34 
App.  Div.  305 ;  Hope  v.  Brewer,  136  N.  Y.  126,  135. 


20  GENERAL  PRINCIPLES.  [CH.  II. 

affected  by  the  trust  or  contingency,  and  also  thereby 
to  entirely  free  the  proceeds  from  those  fetters,  there 
the  existence  of  the  power  obviates  any  suspension  of 
alienability  either  of  the  original  property,  or  of  its 
proceeds  whether  regarded,  in  a  given  case,  as  real  or 
personal  property.1 

§  45.  It  does  indeed  seem  to  have  been  intimated  that 
the  principle  under  consideration,  while  applicable  to 
real  property,  does  not  apply,  or  applies  in  some  wholly 
different  sense,  to  personal  property.  This  subject  is 
discussed  later  on  in  Chapter  VII.  It  may  here  be 
said,  however,  that  the  only  real  difference  in  the  two 
cases  seems  to  be  this:  that  a  power  to  sell  the  realty 
obviates  suspension  as  to  it,  if  the  purpose  of  the  sale 
is  valid  and  a  sale  under  it  will  not  operate,  or  co-oper- 
ate, to  effect  any  illegal  result.  It  would  thus  operate 
if  the  ownership  of  the  proceeds,  in  case  of  a  sale,  and 
whether  regarded  as  real  or  personal  property,2  were  to 
remain,  or  become,  suspended,  for  an  unauthorized 
term.  Therefore  we  must  look  beyond  the  power  itself, 
to  the  purpose  it  is  to  serve,  as  related  to  the  proceeds, 
and  the  discovery  of  that  purpose,  in  relation  to  person- 
alty, as  well  as  realty,  may  show  whether  the  power 
itself  is  or  not  effective  to  obviate  suspension.  If  the 
purpose,  and  the  method  of  attaining  it,  are  valid,  the 
power  will  obviate  suspension,  as  applied  to  property 
over  which  it  may  be  exercised;  and  if,  in  such  a  case, 
the  only  power  there  is,  is  nothing  but  a  power  to  merely 
convert  or  change  the  form  of  the  particular  property 

1  Robert  v.  Corning,  89  N.  Y.  225  (see  also  Matter  of  Wilkin,  183  N.  Y. 
104) ;  Marvin  v.  Smith,  46  N.  Y.  571 ;  Henderson  v.  Henderson,  113  N.  Y. 
1,  12;  Belmont  v.  O'Brien,  12  N.  Y.  394,  404-5;  Stoiber  v.  Stoiber,  40 
App.  Div.  156;  Schreyer  v.  Schreyer,  101  App.  Div.  456,  aff'd  182  N.  Y. 
555;  Button  v.  Hemmens,  92  App.  Div.  40:  Stewart  v.  Hamilton,  37  Hun, 
19.  See  Stanley  v.  Payne,  65  Misc.  77.  And  as  to  the  relation  of  a  power 
of  sale,  to  conversion,  see  Chapter  IX. 

2  Chapter  IX. 


§46.]  "NO  PERSONS  IN  BEING."  21 

originally  subjected  to  the  trust  or  contingency,  then 
it  is  only  that  particular  original  property  that  is 
thereby  freed  from  suspension  of  the  absolute  power  of 
alienation.  If  the  proceeds  of  the  sale  are  not  in  turn 
alienable,  but  must  be  held  subject  to  the  original  trust 
or  contingency,  and  not  disposed  of,  then  we  have  an 
illustration  of  the  second  sense,  above  referred  to,1 
in  which  the  term  suspension  of  the  absolute  power 
of  alienation  is  employed.  For  thus  the  absolute  power 
of  alienation,  though  retained  in  respect  to  the  prop- 
erty designated  in  the  instrument,  is  suspended  in  re- 
spect to  property  which  is  not  yet  ascertained,  but 
which  will  become  so  in  future  when  it  is  taken  in 
payment  for  the  original  property.  Yet  in  such  cases 
it  is  settled  that  from  the  "  creation  of  the  estate  "  the 
absolute  power  of  alienation  is  suspended.2 

§  46.  And  the  same  principles  already  considered, 
apply  to  a  mere  power  to  exchange  the  real  property 
for  other  real  property,  to  be  held  subject  to  the  same 
trust;  or  to  sell  for  the  mere  purpose  of  re-investment 
in  other  real  property.3  And  still  further,  and  in  illus- 
tration of  the  third  sense,4  in  which  the  term  "  suspen- 
sion of  the  absolute  power  of  alienation  "  is  employed, 

1  §  33. 

2  Real  Prop.  L.  §  96 ;  Chapter  VII,  infra ;  Underwood  v.  Curtis,  127 
N.  Y.  523,  527;  Brewer  v.  Brewer,  11  Hun,  147,  aff'd  sub  nom.  Bremer  v. 
Penniman,  72  N.  Y.  603;  Hobson  v.  Hale,  95  N.  Y.  588,  609;  Cruikshank 
v.  Home  for  the  Friendless,  113  N.  Y.  337,  352;  Belmont  v.  O'Brien,  12 
N.  Y.  394,  404-5  (see  dissenting  opinion  of  Earl,  J.,  in  Heernmns  v. 
Robertson,  64  N.  Y.  332,  352);  Allen  v.  Allen,  149  N.  Y.  280,  288;  Haynes 
v.  Sherman,  117  N.  Y.  433,  438;  Ward  v.  Ward,  105  N.  Y.  68,  71,  73,  75; 
Bramhall  v.  Ferris,  14  N.  Y.  41 ;  Roosevelt  v.  Roosevelt,  6  Hun,  31.  aff'd 
64  N.  Y.  651;  Stoiber  v.  Stoiber,  40  App.  Div.  156;  Hagemeyer  v.  Saul- 
paugh,  97  App.  Div.  535,  544;  Hayden  v.  Sugden,  48  Misc.  108. 

3  Belmont  v.  O'Brien,  12  N.  Y.  394,  402;  Brewer  v.  Brewer.  11  Hun, 
147,  aff'd  72  N.  Y.  603;  see  Ward  v.  Ward,  105  N.  Y.  68.  71  :  Hobson  v. 
Hale,  95  N.  Y.  588,  609;  Hawley  v.  James,  16  Wend.  61,  163;  Harris  v. 
Clark,  7  N.  Y.  242,  260. 

4  8  34. 


22  GENERAL  PRINCIPLES.  [CH.  II. 

it  is  to  be  noticed  that  even  though  both  the  original 
property  and  its  proceeds,  or  property  taken  in  ex- 
change, are  all  made  always  absolutely  alienable,  yet 
such  suspension  will  nevertheless  exist,  if  there  are  "  no 
persons  in  being  "  who  can  free  the  estate  or  fund  itself, 
considered  as  distinct  from  the  property  in  which  it 
may  from  time  to  time  be  invested,  from  the  fetters 
which  prevent  the  spending  or  dissipation  of  it.1 

§  47.  It  is  the  absence  of  the  power  to  alien,  and  not 
the  absence  of  an  actual  exercise  of  the  power,  that 
causes  a  suspension.2  If  the  ability  to  convey  an  abso- 
lute fee  exists,  there  obviously  cannot  be  said  to  be  a 
suspension  of  the  absolute  power  of  alienation.  But 
this  general  proposition  must  be  understood  accurately, 
and  interpreted  in  the  light  of  its  purpose.3 

§  48.  To  this  end,  four  broad  propositions  will  serve 
to  mark  out  the  -general  lines  of  distinction  between 
cases  where  there  are,  and  those  where  there  are  not,  in 
the  sense  of  the  statute,  persons  in  being  by  whom  an 
absolute  fee  in  possession  can  be  conveyed. 

§  49.  (1)  The  statute,  in  speaking  of  jiersons  tcJio 
can  convey  an  absolute  fee,  refers  only  to  cases  where 
there  are  persons  authorized  to  completely  represent 
and  dispose  of  all  the  present  and  the  outstanding  es- 
tates, interests,  rights  and  possibilities,  and  able,   by 

1  §§  33-36;  Allen  v.  Allen,  149  N.  Y.  280,  288;  Ward  v.  Ward,  105N.Y. 
68,  71,  73,  75;  Brewer  v.  Brewer,  11  Hun,  147,  151-3,  aff'd  sub  nom. 
Bremer  v.  Penniman,  72  N.  Y.  603;  Hobson  v.  Hale,  95  N.  Y.  588,  609; 
Robert  v.  Corning,  89  N.  Y.  225,  236;  Haynes  v.  Sherman,  117  N.  Y. 
433,  438;  Belmont  v.  O'Brien,  12  N.  Y.  394,  404-5;  Harris  v.  Strodl,  132 
N.  Y.  392. 

2  Robert  v.  Corning,  89  N.  Y.  225,  235,  239;  Henderson  v.  Henderson, 
113  N.  Y.  1,  12;  Hunter  v.  Hunter,  17  Barb.  25,  90;  Williams  v.  Mont- 
gomery, 148  N.  Y.  519. 

3 See  opinion  of  Nelson,  Ch.  J.,  in  Hawley  v.  James,  16  Wend.  61,  122, 
and  of  Walworth  Ch.,  S.  C.  5  Pai.  318,  445. 


§  50.]  "NO  PERSONS  IN  BEING."  23 

uniting,  to  effectuate  a  conveyance  of  the  absolute  fee 
in  possession.1  Thus  the  fact  that  the  Legislature  has 
made  provision  for  the  sale,  in  certain  cases,  of  real 
estate  affected  by  contingent  rights  of  persons  not  in 
being,  does  not  operate  to  obviate  a  suspension  due  to 
the  contingency.  One  reason  for  this  is,  that  the  pro- 
ceeds of  the  sale  must  be  held  for  those  who  may  be- 
come entitled  to  them ; 2  and  thus,  though  the  original 
property  may  be  sold  free  from  contingency,  the  power 
to  alienate  the  estate  or  fund  itself  remains  as  much 
suspended  as  ever.3  Another  reason  is,  that  the  Legis- 
lature is  not  a  "  person  "  who  can  "  convey."  If  it  were 
so  in  the  connection  under  consideration,  it  would  be  so 
in  all  cases,  on  account  of  its  power  over  trusts,4  and 
also  over  the  very  existence  of  any  rule  relating  to  sus- 
pension,5 and  thus  there  would  be  no  such  thing  as  sus- 
pension of  the  power  of  alienation.6  So  also  a  court  is 
not  a  "  person."  7 

§  50.    (2)    In  order  to    create    a    suspension    of    the 
power  of  alienation,  the  absence  of  persons  in  being 

'Genet  v.  Hunt,  113  N.  Y.  158,  172;  Fowler  v.  Ingersoll,  127  N.  Y. 
472,  477 ;  Williams  v.  Montgomery,  148  N.  Y.  519 ;  Nellis  v.  Nellis,  99 
N.  Y.  505,  516;  and  cases  cited  supra. 

'Ebling  v.  Dreyer,  149  N.  Y.  460;  Mead  v.  Mitchell,  17  N.  Y.  210; 
Brevoort  v.  Brevoort,  70  N.  Y.  136;  Monarque  v.  Monarque,  80  N.  Y. 
320;  Kent  v.  Church  of  St.  Michael,  136  N.  Y.  10;  Campbell  v.  Stokes, 
142  N.  Y.  23,  30;  Brevoort  v.  Grace,  53  N.  Y.  245;  Kirk  v.  Kirk,  137 
N.  Y.  510;  Smith  v.  Secor,  157  N.  Y.  402;  Kilpatrick  v.  Barron,  125 
N.  Y.  751;  Dwight  v.  Lawrence,  111  App.  Div.  616. 

3  §§  32-34. 

4  Metcalfe  v.  Union  Trust  Co.,  181  N.  Y.  39;  Pers.  Prop.  L.  §  23. 

5  Richardson  v.  Amsdon,  85  N.  Y.  Supp.  342. 

6  But  the  State  as  a  property  owner  can  convey  and  release,  and  so, 
assuming  that  any  question  involving  suspension  of  alienability  could 
otherwise  arise  in  connection,  for  example,  with  possibilities  of  escheat, 
the  capacity  of  the  State  to  deal  with  its  own  property  would  obviate  the 
objection.  As  to  retroactive,  retrospective,  or  ex  post  facto  laws,  and  the 
power  of  the  Legislature,  see  Brearley  School  v.  Ward,  201  N.  Y.  358; 
Metcalfe  v.  Union  Trust  Co.,  181  N.  Y.  39. 

7  §  53. 


24:  GENERAL  PRINCIPLES.  [CH.  II. 

who  can  convey  an  absolute  fee  in  possession  must  be 
occasioned  by  the  provisions  of  the  instrument;  and 
also  in  order  to  obviate  a  suspension  which  such  provi- 
sions would  otherwise  create,  persons  in  being  who  can 
thus  convey  must  be  furnished  by  other  provisions  of  the 
instrument.  For  the  statute  which  prohibits,  except 
within  certain  limits,  any  suspension  of  the  absolute 
power  of  alienation,  is  aimed  only  at  such  suspension 
as  is  effected  by  the  terms  of  the  instrument  creating 
the  estate,  and  not  at  such  as  necessarily  arises  from 
the  disability  of  infancy,  or  from  other  causes  outside 
of  the  instrument.1 

§  51.  And  the  fact  that  a  devisee  in  fee  is  at  the  time 
of  testator's  death  a  convict  serving  a  term  of  years  in 
the  State  prison,  does  not  leave  the  title  in  abeyance 
and  so  effect  a  suspension  of  the  power  of  alienation. 
Notwithstanding  his  status,  the  property  devised  can 
vest  in  him,  and  he  can  convey  it.2  And  in  the  same 
way,  a  mere  provision  that  a  trust,  already  duly  lim- 
ited to  the  "statutory  period,"  shall  (by  way  of  pen- 
alty) earlier  cease  in  case  the  beneficiary  should  inter- 
fere, or  make  hostile  claims,  would  not  obviate  suspen- 
sion otherwise  existing.  It  is  true  that  such  a  provi- 
sion puts  it  in  the  power  of  the  beneficiary  in  a  sense 
to  end  the  trust,  but  yet  he  could  only  accomplish  that 
result  by  doing  something  that  the  instrument  forbids.3 

§  52.  In  a  similar  manner,  it  may  sometimes  happen, 
through  the  ordinary  and  appropriate  application  of 


i  Beardsley  v.  Hotchkiss,  96  N.  Y.  201,  214;  Everitt  v.  Everitt,  29 
N.  Y.  39,  77;  Livingston  v.  Tucker,  107  N.  Y.  549,  552;  Craig  v.  Craig,  3 
Barb.  Ch.  76;  Quade  v.  Bertsch.  65  App.  Div.  600,  607,  aff'd  173  N.  Y. 
615;  McGowan  v.  McGowan.  2  Duer,  57. 

2  La  Chapelle  v.  Burpee,  69  Hun,  436;  Avery  v.  Everett,  110  N.  Y.  317. 

8  Van  Cott  v.  Prentice,  104  N.  Y.  45,  52.  See  also  Bramhall  v.  Ferris, 
14  N.  Y.  41. 


§  54.]  "NO  PERSONS  IN  BEING."  25 

familiar  doctrines,  such  as  those  relating  to  estoppel, 
laches,  waiver,  bar,  acquiescence,  former  adjudication, 
compromise,  and  "  practical  construction,''  that  bene- 
ficial interests  which  might,  as  an  original  question,  be 
found  indestructible  by  action  of  the  beneficiary,  have 
in  reality,  and  through  his  acts,  or  omissions,  become  as 
unenforceable  as  if  they  had  been  validly  transferred 
and  extinguished.1  The  result  thus  produced  would 
not,  of  course,  flow  from  any  theory  inconsistent  with 
the  full  force  and  effect  of  the  statutes  relating  to  sus- 
pension of  the  power  of  alienation ;  and  accordingly  the 
possibility  that  such  a  result  might  perchance  come 
about  would  not,  in  any  given  case,  obviate  a  suspen- 
sion otherwise  existing.2 

§  53.  (3)  The  ability  to  convey  an  absolute  fee  must 
also,  in  order  to  obviate  suspension,  be  an  absolute 
ability,  depending  merely  upon  the  unrestrained  option 
of  the  persons  who  possess  it,  and  not  dependent  upon 
the  actual  occurrence,  as  a  condition  precedent,  of  a 
specified  state  of  facts  which  may  or  may  not  come  into 
existence. 

§  54.  It  is  settled,  for  instance,  that  assuming  that  a 
judge  might,  in  any  case,  in  his  official  capacity,  and  in 

1  The  following  may  be  cited  from  among  very  numerous  authorities,  as 
illustrative  of  the  general  classes  mentioned.  Woodbridge  v.  Bockes,  170 
N.  Y.  596,  affirming  59  App.  Div.  503;  Starr  v.  Starr,  132  N.  Y.  154; 
Everett  v.  Peyton,  167  N.  Y.  117,  120;  Steinway  v.  Steinway,  163  N.  Y. 
183;  Matter  of  Pruyn,  141  N.  Y.  544;  Stevens  v.  Melcher,  152  N.  Y.  551  ; 
Matter  of  Straut,  126  N.  Y.  201;  Culross  v.  Gibbons,  130  N.  Y.  447,  454; 
Sweeney  v.  Warren,  127  N.  Y.  426,  435;  St.  John  v.  Andrews  Institute, 
192  N.  Y.  382;  Spofford  v.  Pearsall,  138  N.  Y.  57;  Haviland  v.  Willets, 
141  N.  Y.  35;  Jewett  v.  Schmidt,  108  App.  Div.  322,  aff'd  184  N.  Y. 
608:  Leavitt  v.  Wolcott,  95  N.  Y.  212,  219-222;  Code  Civ.  Pr.  §  1537: 
Corley  v.  McElmeel,  149  N.  Y.  228;  Bowen  v.  Sweeney,  89  Hun,  359, 
aff'd  154  N.  Y.  780;  Thorn  v.  De  Breteuil,  179  N.  Y.  64. 

*  Woodbridge  v.  Bockes,  170  N.  Y.  590,  affirming  59  App.  Div.  503. 
Compare  Bliven  v.  Robinson,  83  Hun,  208,  209,  70  N.  Y.  615;  Douglas  v. 
Cruger,  80  N.  Y.  15;  Baltes  v.  Union  Trust  Co.,  180  N.  Y.  183. 


26  GENERAL  PRINCIPLES.  [CH.  II. 

the  exercise  of  his  judicial  discretion,  give  such  a  con- 
sent as  would  render  it  possible  for  those  interested, 
to  convey  a  fee  otherwise  inalienable,  this  would  not 
suffice.  One  reason  given  for  this  proposition  is,  that 
the  judge's  judicial  action  could  not  be  brought  in  any 
sense  within  the  term  "  conveyance."  It  could  not 
properly  be  said  that  he  and  they  together  constituted 
persons  in  being  capable  of  conveying  a  fee.  For  his 
consent  must  come  first,  and  act  not  as  a  conveyance, 
but  as  a  collateral  condition  precedent,  to  impart  to  the 
others  a  power  not  thitherto  possessed  by  any  one.1  No 
court  possesses  the  power  to  compel  a  trustee  to  consent 
to  the  destruction  of  a  valid  trust,2  or  to  destroy  such 
a  trust  even  upon  the  petition  of  the  trustee  and  bene- 
ficiary.3 But  there  is  another  and  much  more  weighty 
reason,  namely,  that  the  court  cannot  consent  arbitrar- 
ily; it  must  decide  in  accordance  with  the  merits  of  the 
case  as  they  may  appear;  and  accordingly  it  is  not  cer- 
tain that  the  facts  will  be  such  as  to  make  it  permissible 
to  grant  the  consent.4 

§  55.  On  the  other  hand,  however,  though  still  illrv 
trating  the  same  principle,  it  is  also  settled  that  if  a 
given  power  of  sale  is  such  as  in  itself  to  obviate  a  sus- 
pension which  would  otherwise  exist,  its  efficiency  in 
that  respect  is  not  negatived  by  the  fact  that  by  its 
terms  it  can  only  be  exercised  upon  the  consent  of  a 
designated  person,  if  the  latter  is  free,  as  he  may  see  fit, 
to  grant  the  consent  or  withhold  it.     The  distinction 


i  Genet  v.  Hunt,  113  N.  Y.  158,  172;  Fowler  v.  Ingersoll,  127  N.  Y. 
472,  477;  Button  v.  Hemmens,  92  App.  Div.  40.  See  O'Donaghue  v. 
Smith,  184  N.  Y.  365,  374;  Matter  of  Asche,  75  App.  Div.  486. 

2  Cuthbert  v.  Chauvet,  136  N.  Y.  326 ;  Rochevot  v.  Rochevot,  74  App. 
Div.  585,  590. 

3  Douglas  v.  Cruger,  80  N .  Y.  15,  19.  Compare  the  statutory  provi- 
sion in  Pers.  Prop.  L.  §  23. 

4  Button  v.  Hemmens,  92  App.  Div.  40,  43;  Genet  v.  Hunt,  113  N.  Y. 
158,  172;  Fowler  v.  Ingersoll,  127  K  Y.  472,  477. 


§  56.]  "  NO  PERSONS  IN  BEING."  27 

between  such  a  consent,  and  the  consent  of  the  court, 
and  the  difference  in  their  bearing  upon  the  question 
of  suspension,  are  found  in  the  fact  that  in  the  one  case 
the  power  to  consent  is  absolute,  and  in  the  other 
merely  conditional.1 

§  56.  Where  an  instrument  containing  provisions 
which  would  otherwise  effect  a  suspension,  confers  upon 
the  trustee,  instead  of  a  power  to  sell  or  exchange,  as 
in  cases  already  discussed,  an  unrestricted  authority,  at 
any  time,  at  his  option,  to  reconvey  the  property  abso- 
lutely to  the  original  grantor,2  or  to  "  terminate  the 
trust,"  3  the  authority  is  valid,  enables  the  trustee  to  act 
accordingly,  and  apparently,  under  the  ruling  in  Rob- 
ert V.  Coming,*  obviates,  during  the  period  when  the 
power  exists  and  may  be  exercised,  any  suspension 
of  the  power  of  alienation.5  The  same  principle  applies 
to  a  power  of  appointment  exercisable  at  any  time  with- 
out restriction,  and  then  to  operate  to  terminate  a  state 
of  facts  which,  but  for  the  existence  of  the  power,  would 
occasion  suspension ; 6  and  apparently  to  an  unre- 
stricted power,  reserved  to  the  grantor  by  the  terms  of 
an  instrument  creating  a  trust  measured  by  the  grant- 
or's life,  to  revoke  the  trust.7     In  that  case,  the  instru- 


i  Stoiber  v.  Stoiber,  40  App.  Div.  156,  159;  Matter  of  "Wilcox,  194  N.  Y. 
288,  305:  Eeal  Prop.  L.  §§  173,  174;  Spitzer  v.  Spitzer,  38  App.  Div.  436; 
Matter  of  Vanderbilt,  20  Hun,  520.  As  to  the  effect  of  the  death  of  the 
person  whose  consent  is  required,  see  Real  Prop.  L.  §  174;  Schreyer  v. 
Schrcyer,  101  App.  Div.  456,  aff'd  182  N.  Y.  555;  Matter  of  Vanderbilt, 
20  Hun,  520,  526;  Kissam  v.  Dierkes,  49  N.  Y.  602. 

5  Schreyer  v.  Schreyer,  101  App.  Div.  456,  aff'd  182  N.  Y.  555. 

3  Higgins  v.  Downs,  101  App.  Div.  119;  Crooke  v.  County  of  Kings, 
97  N.  Y.  421,  447. 

4  Robert  v.  Corning,  89  N.  Y.  225,  236. 

5  Belmont  v.  O'Brien,  12  N.  Y.  394,  404-5 ;  Voorhis  v.  Voorhis,  66  Misc. 
78 ;  Mt.  Morris  Co-op.  Building  &  Loan  Assn.  v.  Smith,  120  N.  Y.  Supp. 
676. 

8  Matter  of  Wilcox,  194  N.  Y.  288. 
1  Real  Prop.  L.  §§  144,  145,  148. 


28  GENERAL  PRINCIPLES.  [CH.  II. 

ment  itself  provides  means  for  vesting  an  absolute  title 
at  any  time,  fi*ee  from  the  trust,  and  it  would  seem  that 
the  trust,  though  valid,  should  not  be  deemed  to  effect 
any  suspension.1  A  revocation  is  not  in  "  contraven- 
tion of  the  trust,"  2  nor  is  any  such  act  by  the  grantor, 
under  such  an  instrument,  prohibited  by  statute.  But 
a  power  of  revocation  can  of  course  have  such  a  bearing 
on  the  question  of  suspension  only  during  the  life  of  the 
person  who  can  exercise  it.  After  his  death,  and  as 
then  applied  to  a  further  trust,  it  can  have  no  effect.3 

§  57.  Another  illustration  of  the  principles  under 
consideration  may  be  found  in  a  case  involving  author- 
ity to  a  trustee  to  convey  to  the  beneficiary,  free  from 
the  trust,  if  he  should  then  have  discharged  all  his 
debts,  and  be  in  the  judgment  of  the  trustee  entirely 
solvent.  Tt  was  assumed  by  the  court,  without  decid- 
ing, that  the  conditions  prescribed  by  the  testator,  upon 
which  the  trustee  might  terminate  the  trust,  were  con- 
ditions precedent  to  such  termination.4  And  in  Spitzer 
v.  Spitzer,5  the  trust  was  to  continue  until  the  property 
should  be  sold;  and  the  trustee  was  directed  to  sell 
within  two  years,  but  not  for  less  than  $18,500  without 
the  written  consent  of  designated  persons.     The  fact 

1  Belmont  v.  O'Brien,  12  N.  Y.  394,  404-5;  Schreyer  v.  Schreyer,  101 
App.  Div.  456,  aff'd  182  N.  Y.  555 ;  Brown  v.  Spohr,  180  N.  Y.  201 ; 
Matter  of  Masury,  28  App.  Div.  580,  aff'd  159  N.  Y.  532.  (compare 
Matter  of  Bostwick,  160  N.  Y.  489) ;  Von  Hesse  v.  MacKaye,  136  N.  Y. 
114,  119;  Barnard  v.  Gantz,  140  N.  Y.  249,  259;  Towler  v.  Towler,  142 
N.  Y.  371,  375;  Kissam  v.  Dierkes,  49  N.  Y.  602. 

2  §  183. 

3  See  Van  Cott  v.  Prentice,  104  N.  Y.  45;  Locke  v.  F.  L.  &  T.  Co.  140 
N.  Y.  135.  See  also  the  new  statutory  provision  authorizing  the  creator  of 
a  trust  of  personal  property,  upon  the  consent  of  all  those  who  are  benefi- 
cially interested  thereunder,  to  terminate  the  trust.  Pers.  Prop.  L.  §  23, 
and  infra  §  399. 

4  Young  v.  Young,  127  App.  Div.  130;  compare  Cushman  v.  Cushman, 
116  App.  Div.  763,  aff'd  191  N.  Y.  505;  Roosevelt  v.  Roosevelt,  6  Hun, 
31,  aff'd  64  K  Y.  651,  "  substantially  on  opinion  below." 

5  38  App.  Div.  436. 


§  59.]  "  NO  PERSONS  IN  BEING."  29 

that  with  their  consent  he  could  sell  for  less,  operated 
to  obviate  any  suspension,  but  the  court  say  that  if  it 
had  not  been  for  that  feature,  "  the  trust  would  be  ille- 
gal because  it  might  be  that  the  executor  never  could 
obtain  that  price."  1 

§  58.  (4)  The  ability  to  convey  a  fee  must,  in  order 
to  obviate  suspension  of  the  absolute  power  of  aliena- 
tion of  real  property,  consist  in  the  existence  of  legal 
capacity  and  ability  in  one  or  more  persons,  to  perform 
an  act  relating  directly  to  the  clearing  and  the  transfer 
of  title,  and  sufficient  to  effectuate  the  vesting  of  an 
absolute  fee  in  possession.  This  is,  perhaps,  only  an- 
other form  of  stating  the  principle  substantially  em- 
bodied in  the  preceding  subdivision  (3).  For  if  the 
act  which  the  person  in  question  is  able  to  perform  does 
not  answer  to  a  "  conveyance,"  in  the  sense  already 
discussed,  its  performance  could  at  most  only  operate 
as  the  happening  of  a  condition  precedent,  rendering  a 
conveyance  possible.  But  the  bare  power  to  do  an  act 
not  connected  with  any  transfer  of  an  absolute  title, 
which  only  operates  indirectly  to  put  it  in  the  power 
of  others  thereafter  to  convey  or  to  require  a  convey- 
ance, or  a  termination  of  the  suspension,  and  which 
must  be  performed  first  before  they  can  act,  is  not 
in  itself  the  absolute  power  of  alienation  which  the 
statute  contemplates.  This  may  be  best  illustrated  by 
a  statement  of  certain  cases  where  the  beneficiarv  of  an 
express  trust  to  receive  and  apply  rents  and  profits,  is 
sometimes  able,  by  indirection,  to  bring  about  a  total 
or  partial  failure  of  the  trust,  and  yet,  while  the  trust 
continues,  the  power  of  alienation  is  suspended. 

§  59.  Thus,  in  connection  with  the  several  principles 
thus  far  discussed,  we  are  now  brought  to  the  considera- 

1  And  this  Is  so  held  in  Stewart  v.  Woolley,  121  App.  Div.  531.     Chapter 
VII. 


30  GENERAL  PRINCIPLES.  [CH.  II. 

tion  of  the  bearing  upon  the  existence  of  suspension 
of  the  power  of  alienation,  of  ability  on  the  part  of  the 
beneficiary  himself, — in  so  far  as  such  ability  may  ex- 
ist— to  bring  the  trust  to  an  end;  thus  involving  con- 
sideration of  the  beneficiary's  status  as  a  "  person  in 
being  "  who  can  "  convey." 

§  60.  Under  the  ordinary  forms  of  trust  to  receive 
and  apply  income,  where  the  trustee  is  forbidden  by 
law  to  convey  in  contravention  of  the  trust,  the  bene- 
ficiary does  not  figure  as  such  a  "  person."  He  does 
not  hold  the  title,  and  cannot  convey  it;  and  his  inter- 
est as  a  beneficiary,  by  assigning  or  releasing  which,  if 
he  could  do  so,  he  might  terminate  the  intended  purpose 
of  the  trust  and  so  end  the  trust  itself  and  effect  a  vest- 
ing of  absolute  title  somewhere,  he  cannot  in  reality 
assign  or  release  because  he  also  is  forbidden  by  law  to 
do  so.  Even  when,  in  special  cases,  the  law  does  recog- 
nize the  beneficiary's  ability  to  do  acts  which  may  in- 
directly bring  about  a  termination  of  his  further  actual 
beneficial  interest,  it  does  not  follow  that  this  answers 
the  requirements  of  the  statute,  as  already  enumerated, 
or  constitutes  ability  to  convey,  in  the  sense  of  the  stat- 
ute, so  as  to  obviate  suspension  otherwise  existing. 
This  is  illustrated,  for  example,  in  the  particular  class 
of  trusts  to  receive  and  apply  rents  and  profits,  or  in- 
come, in  which  the  creator  of  the  trust  is  also  the  bene- 
ficiary. In  such  cases  the  statutory  prohibition  against 
transfer  of  beneficial  rights  has  no  application,1  and 
the  beneficiary  may  accordingly  assign,  yet  the  trust 
itself  continues,  and  the  trustee,  at  least  for  the  time 
being,  and  until  other  disposition  is  made  by  the  court, 
and  possibly  permanently  throughout  the  original  term 
of  the  trust,  retains  the  legal  title,  subject  to  the  statu- 
tory provision  against  alienation  by  him,  in  contraven- 

1  Schenck  v.  Barnes,  156  N.  Y.  316. 


§  62.]  "  NO  PERSONS  IN  BEING."  31 

tion  of  the  trust ;  and  in  consequence  the  trust,  like  any 
other  trust  to  receive  and  apply  rents  and  profits,  occa- 
sions a  suspension  of  the  power  of  alienation. 

• 

§  61.  In  Genet  v.  Hunt,1  the  trust  was  created  by  the 
grantor  for  her  own  benefit,  and  it  was,  in  order  to 
justify  one  of  the  two  grounds  on  which  the  decision 
was  based,  strictly  essential  to  find  that  that  trust 
operated,  during  the  grantor's  life,  to  suspend  the  ab- 
solute power  of  alienation.  This  the  court  does,  hold- 
ing that  the  trust  for  the  life  of  the  grantor  "  was  one 
of  the  express  trusts  authorized  by  statute  to  receive 
the  rents  and  profits  of  lands  and  apply  them  to  the 
use  of  any  person  during  the  life  of  such  person,  or  for 
a  shorter  period  (1R.S.  728,  §  55,  subd.  3)  [Real  Prop. 
L.  §  96]  and  suspended  the  power  of  alienation  of  the 
real  estate  and  the  absolute  ownership  of  the  personal 
property  embraced  in  the  trust,  during  the  trust  term, 
*  *  *.  Neither  she  alone,  or  in  conjunction  with  the 
trustees,  could  abrogate  the  trust."  2  A  similar  situa- 
tion may  exist  where  a  trust  is  created  by  a  person  other 
than  the  beneficiary  and  is  to  continue  only  until  a 
creditors'  bill  is  filed,  or  until  judgment  entered  etc.3 

§  62.  Another  reason,  or  another  form  of  stating  the 
reason,  for  this  result,  is  found  in  the  proposition  set 
forth  above,  that  even  if  the  acts  of  such  a  beneficiary 
can  in  any  case  lead  to  a  termination  of  the  trustee's 
title,  and  the  vesting  of  an  absolute  fee  in  possession 
somewhere,  yet  those  acts  would  constitute  a  mere  con- 
dition precedent,  and  not  a  conveyance.4 


•113N.  Y.  158,  168. 

5  Compare  "Wainwright  v.  Low,  132  N.  Y.  313,  319. 

"Bramhall  v.  Ferris,  14  N.  Y.  41. 

4 The  statutes  in  point,  relating  to  creditors '  rights,  are  as  follows:  Real 
Prop.  L.  §98,  103;  Code  Civ.  Proc.  §§1391,  1871,  1873,  1879,  2463;  Pers. 
Prop.  L.  §§11,  15,  34  ;  Matter  of  Ungrich,  201  N.  Y.  415;  Brearley  School 


32  GENERAL  PRINCIPLES.  [CH.  II. 

§  63.  In  addition  to  special  statutory  provisions  like 
those  intended  to  protect  in  proper  cases  the  rights  of 


v.  Ward,  201  N.  Y.  368.     Illustrative  cases  relating  to   creditors'  rights 
may  be  conveniently  classified  as  follows: 

(a)  Rights  of  creditors  where  the  trust  was  created  by  some  one  other 
than  the  beneficiary ;  Brearley  School  v.  Ward,  201  N.  Y.  358 ;  Wetmore 
v.  Wetmore,  149  N.  Y.  520,  527,  529,  and  also  162  N.  Y.  503;  Matter  of 
Ungrich,  201  N.  Y.  415;  N.  T.  Bank  v.  Wetmore,  124  N.  Y.  241;  Schenck 
v.  Barnes,  156  K  Y.  316,  320;  Ullman  v.  Cameron,  186  N.  Y.  399; 
Williams  v.  Thorn,  70  N.  Y.  270 ;  Graff  v.  Bonnett,  31  N.  Y.  9 ;  Everett  v. 
Peyton,  167  N.  Y.  117;  Sherman  v.  Skuse,  166  N.  Y.  345;  Bergmann  v. 
Lord,  194  N.  Y.  70 ;  King  v.  Irving,  103  App.  Div.  420 ;  Sloane  v.  Tiffany, 
103  App.  Div.  540;  Howard  v.  Leonard,  3  App.  Div.  277;  Bunnell  v. 
Gardner,  4  App.  Div.  321;  Kilroy  v.  Wood,  42  Hun,  636;  Tollesv.  Wood, 
1  Abb.  N.  C.  1,  16,  and  99  N.  Y.  616;  Andrews  v.  Whitney,  82  Hun, 
117;  McEvoy  v.  Appleby,  27  Hun,  44;  Bramhall  v.  Ferris,  14  N.  Y.  41; 
Wetmore  v.  Truslow,  51  N.  Y.  338;  Locke  v.  Mabbitt,  3  Abb.  Ct.  App. 
Dec.  68;  DeGraw  v.  Clason,  11  Pai.  136;  Rider  v.  Mason,  -4  Sandf.  Ch. 
351;  Genet  v.  Beekman,  45  Barb.  382;  Hallett  v.  Thompson,  5  Pai.  583; 
Raymond  v.  Tiffany,  59  Misc.  283;  Congdon  v.  Lee,  3  Edw.  Ch.  304; 
Scott  v.  Nevius,  6  Duer,  672 ;  bearing  of  the  several  statutes  on  trusts  of 
real  and  of  personal  property;  Williams  v.  Thorn,  70  N.  Y.  270;  Tollesv. 
Wood,  99  N.  Y.  616,  1  Abb.  K  C.  1;  Wetmore  v.  Wetmore,  149  N.  Y. 
520,  527;  Schenck  v.  Barnes,  156  N.  Y.  316;  Kene  v.  Hill,  102  App.  Div. 
370;  Newton  v.  Jay,  107  App.  Div.  457;  Delaney  v.  Valentine,  154  N.  Y. 
690;  Pers.  Prop.  L.  §  11;  non-assignability  by  the  beneficiary;  Butler  v. 
Baudouine,  84  App.  Div.  215.  aff'd  177  N.  Y.  530  (compare  Brown  v. 
Barker,  68  App.  Div.  592) ;  Dittmar  v.  Gould,  60  App.  Div.  94;  Wetmore 
v.  Wetmore,  149  N.  Y.  520;  Levey  v.  Bull,  47  Hun,  350;  Manning  v. 
Evans,  19  Hun,  500;  Sherman  v.  Tucker,  60  App.  Div.  127;  Matter  of 
Seymour,  76  App.  Div,  300;  Bergmann  v.  Lord,  194  N.  Y.  70,  75,  and  see 
the  present  wording  of  the  Bankruptcy  Act. 

(b)  Cases  where  the  beneficiary  is  the  person  who  created  the  trust; 
Gilman  v.  McArdle,  99  N.  Y.  451,  457;  Townshend  v.  Frommer,  125 
N.  Y.  446,  454-5;  Schenck  v.  Barnes,  156  N.  Y.  316,  320;  Young  v. 
Heermans,  66  N.  Y.  374;  Newton  v.  Jay,  107  App.  Div.  457;  Livingston's 
Petition,  34  N.  Y.  555;  Kene  v.  Hill,  102  App.  Div.  370;  Newton  v. 
Hunt,  134  App.  Div.  325,  201  N.  Y.  559;  (see  Noyes  v.  Blakeman, 
6  N.  Y.  567);  Raymond  v.  Harris,  84  App.  Div.  546;  Myer  v.  Thompson, 
35  Hun,  561  ;  Congdon  v.  Lee,  3  Edw.  Ch.  304;  Douglas  v.  Cruger,  80 
N.  Y.  15;  Baltes  v.  Union  Trust  Co.  180  N.  Y.  183;  Farmers'  Loan  & 
Trust  Co.  v.  Kip,  192  N.  Y.  266,  and  where,  in  such  cases,  the  trust 
relates  to  personal  property;  Pers.  Prop.  L.  §§  11,  34;  Curtis  v.  Leavitt, 
15  N.  Y.  9,  114,  123,  147,  149,  176,  204,  295;  Delaney  v.  Valentine,  154 
K  Y.  692,  701. 


§  63.]  "  NO  PERSONS  IN  BEING."  33 

creditors,  and  operating  only  by  indirection  upon  the 
actual  right  of  the  beneficiary  to  assign,  there  might 
exist  statutes  specifically  authorizing  the  beneficiary, 
in  given  cases,  to  end  the  trust,  and  acquire,  or  convey, 
absolute  title  to  the  property.1  Thus  while,  under  the 
general  statutory  scheme,  the  acquisition  by  the  bene- 
ficiary of  a  trust,  of  the  remainder  limited  thereon,  will 
not,  in  the  absence  of  a  statute  effecting  such  a  result, 
cause,  or  render  possible,  a  termination  of  the  trust, 
which  continues  as  if  the  remainder  were  owned  by  a 
third  person,2  yet  a  contrary  result  might  be  provided 
for  by  statute.  Indeed,  in  New  York  in  1893,  a  statu- 
tory provision  was  enacted,  authorizing  the  release  of 
beneficial  interest  under  a  trust,  in  certain  cases,  by  a 
beneficiary  entitled  to  the  remainder,  and  the  conse- 
quent termination  of  the  trust  itself,3  and  it  was  held 
in  Mills  v.  Mills*  that  the  resulting  ability  of  such  a 
beneficiary  to  effectuate,  if  he  should  choose,  the  vest- 
ing of  an  absolute  fee,  free  from  the  trust,  wholly  obvi- 
ated the  existence  of  any  suspension,  because  the  stat- 
ute rendered  him  a  person  in  being  who  could  convey 
an  absolute  fee  in  possession.  From  that  proposition, 
if  correct,  it  follows,  although  that  particular  statute 
was  later  repealed,  that  inalienability  by  the  trustee 
will  not  occasion  suspension  if  only  in  a  given  case  the 


1  Leggett  v.  Hunter,  19  N.  Y.  445,  460 ;  Brearley  School  v.  Ward,  201 
N.  Y.  358,  369. 

2  Raymond  v.  Rochester  Trust  &c.  Co.,  75  Hun,  239;  Martin  v.  Pine,  79 
Hun,  426;  Howland  v.  Clendenin,  134  N.  Y.  305,  310. 

3  L.  1893,  Ch.  452,  later  embodied  in  Real  Prop.  L.  of  1896,  and  Pers. 
Prop.  Law  of  1897,  with  changes  of  phraseology  affecting  the  bearing  on 
then  existing  trusts,  both  provisions  so  far  as  relating  to  this  subject  being 
repealed  by  L.  1903,  Ch.  87  and  88,  without  affecting  then  existing  rights. 
Metcalfe  v.  Union  Trust  Co.,  181  N.  Y.  39;  Matter  of  U.  S.  Trust  Co., 
175  N.  Y.  304;  Connolly  v.  Connolly,  122  App.  Div.  492;  Thall  v.  Dreyfus, 
84  App.  Div.  569;  Mills  v.  Mills,  50  App.  Div.  221;  Oviatt  v.  Hopkins, 
20  App.  Div.  168 ;  Fowler's  Real  Prop.  L.  §  103. 

4  50  App.  Div.  221. 


34  GENERAL  PRINCIPLES.  [CH.  II. 

beneficiary  is  directly  and  validly  authorized  to  execute 
an  instrument  which  will  operate  to  divest  the  trustee's 
title  and  free  the  estate  from  the  fetters  of  the  trust. 
It  follows  also,  on  the  same  assumption,  that  the  Legis- 
lature can  effect  such  a  situation;  and  might,  if  it  saw 
fit,  enable  the  owner  of  property,  in  creating  a  trust 
such  as  by  itself  to  occasion  suspension,  to  authorize 
any  beneficiary  to  effectuate  a  termination  of  the  trus- 
tee's title  in  his  own  favor,  with  the  result  that  such  a 
trust,  so  terminable,  would  not  occasion  suspension. 
Accordingly,  if  the  Legislature  might  do  this,  the  only 
question,  in  determining  in  a  given  case  whether  an  in- 
strument purporting  to  give  such  authority  does  have 
that  result,  is  whether,  under  the  controlling  statute,  the 
Legislature  has  in  reality  enabled  the  creator  of  a  trust 
to  create  it  in  that  form  and  with  that  terminable 
nature. 

§  64.  On  this  subject  there  might  be  at  least  four 
possible  views,  as  follows : 

§  65.  (1)  That  such  an  authority  in  the  beneficiary, 
operates  merely  as  a  power  to  perform  a  condition  pre- 
cedent which,  when  performed,  will  fix  the  natural 
limit  of  the  trust  term,  so  that  the  trust,  instead  of 
being  cut  short,  will  merety  expire  by  limitation,  and  an 
absolute  fee  would  thus  be  indirectly  effectuated;  but 
in  the  meantime  neither  the  trustee  nor  anyone  else 
can  convey,  and  accordingly  a  suspension  exists.  In 
Marvin  v.  Smith,1  the  court  treated  as  valid  both  a 
trust  to  receive  and  apply  rents  and  profits,  and  an 
accompanying  power  to  the  beneficiary  to  direct  a  sale 
by  the  trustee  and  in  that  event  to  receive  the  proceeds 
for  her  own  disposal.     But  the  question  of  whether  or 


i  46  N.  Y.  571. 


§  68.]  "  NO  PERSONS  IN  BEING."  35 

not  such  a  scheme  would  in  any  sense  involve  a  suspen- 
sion, or  obviate  it,  was  not  in  issue  or  discussed.1 

§  66.  (2)  That  a  power  to  convey,  or  to  require  the 
trustee  to  convey,  is  such  a  power  as  may,  while  the 
trustee  continues  to  hold  the  title,  be  vested  in  the  bene- 
ficiary as  well  as  in  any  other  person ;  that  the  exercise 
of  it  is  not  such  a  transfer  of  the  beneficial  interest  as 
is  prohibited  by  statute ;  that  it  is  in  effect  such  a  power 
as  entirely  obviates  any  suspension  otherwise  existing; 
and  that  accordingly  the  term  of  a  trust  accompanied 
by  such  a  power  need  not  be  limited  to  two  lives  in  be- 
ing.2 

§  67.  (3)  That  an  absolute  right  in  the  beneficiary 
to  possession,  control  and  disposition,  renders  the  trust 
inoperative  from  the  beginning.  And  such  is  appar- 
ently the  case  where  the  power  given  to  the  beneficiary 
is  the  main  and  controlling  feature  of  the  scheme.  In 
such  cases  no  question  of  suspension  can  arise.3  In 
Tillman  v.  Cameron,4"  however,  it  was  considered  possi- 
ble that  while  void  as  to  the  beneficiary's  creditors, 
such  a  trust  would  not  necessarily  be  void  as  to  others, 
if  active  in  form. 

§  68.  (4)  That  on  the  other  hand,  if  the  controlling 
features  of  the  scheme  are  the  trustee's  title  to  the  prop- 
erty, and  his  exclusive  power  of  control  and  disposition 
for  the  valid  purposes  of  one  of  the  authorized  express 
trusts,  then  any  mere  nominal  provisions  purporting  to 


1  Also  Matter  of  Farmers'  Loan  &  Trust  Co,  65  Misc.  418 ;  Young  v. 
Young,  127  App.  Div.  130;  Van  Cott  v.  Prentice,  104  N.  Y.  45,  52-3. 

8  As  to  this  see  §  173. 

3  Real  Prop.  L.  £§  92,  93;  Opinion  of  Nelson,  J.,  in  Coster  v.  Lorillard, 
14  Wend.  265,  333;  Wendt  v.  Walsh,  164  N.  Y.  154;  Wainwrightv.  Low, 
132  N.  Y.  313,  319;  Crooke  v.  County  of  Kings.  97  N.  Y.  421,  433;  Far- 
mers' Loan  &  Trust  Co.  v.  Kip,  192  N.  Y.  266,  280,  281. 

4 186  N.  Y.  339,  346. 


36  GENERAL  PRINCIPLES.  [CH.  II. 

give  to  the  beneficiary  powers  inconsistent  with  the  pro- 
posed scheme  and  its  essential  statutory  requisites,  will 
not  necessarily  destroy  the  entire  plan.1  In  that  view, 
such  a  power  in  the  beneficiary  would  be  nothing  other 
than  the  very  power  to  transfer  his  rights,  which  is 
forbidden  by  statute.  If  this  view  is  correct,  it  neces- 
sarily follows  that  the  direct  grant  of  the  power  by  the 
instrument  is  inoperative,  the  trust  stands,  and  sus- 
pension exists.  For  while  the  Legislature  has  the 
power,  by  general  or  special  act,  to  remove  the  statu- 
tory inability  of  the  beneficiaries  of  even  an  existing 
trust  under  Real  Property  Law,  §  103,2  yet  in  the  ab- 
sence of  any  such  action  the  statutory  prohibition 
against  transfers  of  beneficial  interest  by  the  benefici- 
ary is  absolute  and  unqualified,  and  is  a  restriction  not 
upon  the  person  but  upon  the  interest,  so  that  an  ex- 
press permission  in  the  instrument  cannot  override  the 
statutory  prohibition.3  It  would  appear  inconsistent 
with  a  legislative  intent  thus  strictly  construed,  to  hold 
that  nevertheless  the  same  end  might  in  substance  be 
attained  by  providing  not  for  a  right  to  assign  the  bene- 
ficial interest,  but  for  a  right  to  convey  the  title  as 
donee  of  a  power,  or  to  require  its  conveyance  by  an- 
other. 

§  69.  In  all  the  cases  considered,  the  exact  result 
that  follows  such  an  attempt  depends  partly  upon  the 
emphasis  which  the  creator  of  the  estate  apparently  in- 
tended to  lay  on  respective  elements  of  his  scheme,4 


1  Crooke  v.  County  of  Kings,  97  N.  Y.  421,  433-4;  Van  Cott  v.  Prentice, 
104  N.  Y.  45,  53. 

2  Leggett  v.  Hunter,  19  N.  Y.  445,  460 ;  Brearley  School  v.  Ward,  201 
N.  Y.  358,  369. 

3Opiaion  of  Nelson,  J.,  in  Coster  v.  Lorillard,  14  "Wend.  265,  333;  Crooke 
v.  County  of  Kings,  97  N.  Y.  421,433;  Farmers'  Loan  &  Trust  Co.  v.  Kip, 
192  N.  Y.  266,  280-281. 

4  Crooke  v.  County  of  Kings,  97  N.  Y.  421,  433^. 


§  70.]  "NO  PERSONS  IN  BEING."  37 

and  the  resulting  effect  on  the  scheme  as  a  whole  of  a 
finding  that  given  elements  are  invalid.  But  it  can  be 
said  that  the  weight  of  the  principles  and  authorities 
is  heavily  in  favor  of  the  view  that,  according  to  the 
classification  given  above,  such  powers  in  the  benefi- 
ciary cannot  be  sustained  merely  as  a  valid  means  of 
ending  the  term  without  obviating  suspension  in  the 
meantime,  or  as  a  valid  means  of  obviating  suspension 
without  nullifying  the  trust,  but  are,  in  given  cases, 
either  void,  or  operate,  by  their  existence,  to  vitiate  the 
trust  and  vest  absolute  title  in  the  beneficiary  or  in 
others. 

§  70.  The  question  of  whether,  in  order  to  obviate  a 
charge  of  suspension  of  the  power  of  alienation,  the 
number  of  the  "  persons  in  being "  who,  by  uniting, 
could  effect  a  conveyance  of  an  absolute  fee  must,  by  the 
provisions  of  the  original  instrument,  be  kept  within 
any  limits  whatever,  has  apparently  not  arisen  under 
our  statute.  A  somewhat  similar  question  has  been  con- 
sidered in  reference  to  "  lives  in  being  "  under  the  com- 
mon law  Rule  against  Perpetuities.  There  it  has  been 
said  that  the  number  employed  to  measure  the  terra 
must  not  exceed  that  to  which  testimony  can  be  applied, 
to  determine  when  the  survivor  of  them  dies;  but  no 
specific  limit  has  been  fixed.1  So  in  regard  to  "  persons 
in  being  "  who  can  convey,  in  New  York,  the  number 
relied  on  to  avoid  suspension  might  in  a  given  case  be 
so  large  that  testimony  could  not  determine  whether  all 
had  united,  or  not.  There  is  no  fixed  limit,  but  then1 
seems  to  be  no  doubt  that  if  the  question  were  presented 
in  a  given  case,  it  would  be  necessary,  in  order  to  sus- 
tain the  validity  of  the  instrument,  to  satisfy  the  court 
that  the  individual  members  of  the  class  relied  on  as 


1  Gray,  Perpetuities,  2nd  Ed.  §  219  a;  Challis,  Real  Property,  148. 


38  GENERAL  PRINCIPLES.  [CH.  II. 

able  to  convey,  were,  or  by  the  end  of  the  statutory 
period  would  be,  capable  of  identification. 

The  "  Statutory  Period." 

§  71.  Each  of  the  three  Rules  already  stated,  two  of 
which  relate  directly  to  real  property,  while  the  other 
relates  to  personal  property,  employ  the  term  "  statu- 
tory period,"  to  designate  the  authorized  term  of  sus- 
pension, or  of  postponement  of  vesting.  The  maximum 
period  thus  permitted  is  not  the  same,  as  applied  to 
real  and  to  personal  property,1  but  in  other  respects 
the  subject  of  the  "  statutory  period,"  as  applied  to  the 
several  cases,  may  be  conveniently  taken  up  in  this 
subdivision. 

The  "  Creation  of  the  Estate." 

§  72.  In  all  cases,  the  duration  of  the  "  statutory 
period,"  is  computed  from  the  date  of  the  creation  of 
the  estate,  interest  or  possibility  which  occasions  the 
suspension  or  postponement.2  The  date  of  creation  in 
the  case  of  a  grant,  is  the  time  of  the  delivery  of  the 
grant ;  and  in  the  case  of  a  will,  the  death  of  the  testa- 
tor.3 A  special  rule  relating  to  powers,  is  stated  in 
Chapter  V. 

§  73.  From  these  propositions  it  follows,  and  is  now 
well  settled,  that  though  a  scheme  of  disposition  as  set 

1  Chapter  VII. 

2  Real  Prop.  L.  §  42 ;  Pers.  Prop.  L.  §  11. 

a  Real  Prop.  L.  §§  64,  92,  244;  Mattesonv.  Palser,  173 N.  Y.  404,  411-12; 
Matter  of  Raymond,  73  App.  Div.  11 ;  Fargo  v.  Squiers,  154  N.  Y.  250. 
For  the  cases  dealing  with  the  term  of  suspension  occasioned  by  an  instru- 
ment in  execution  of  a  power,  see  Chapter  V,  and  for  special  features 
relating  to  the  term  of  suspension  occasioned  by  express  trusts,  see  Chap- 
ter IV.  As  to  chattels  real,  and  "dispositions  of  rents  and  profits,"  see 
Real  Prop.  L.  §§  33;  49;  60;  as  to  personal  property,  see  Pers.  Prop.  L. 
§  11.  The  mere  fact  that  an  expectant  estate  created  by  grant  is  to  begin 
in  possession  at  the  grantor's  death,  does  not  render  the  instrument  testa- 
mentary in  character.  Robb  v.  Washington  &  Jefferson  College,  185  N.  Y. 
485,  493. 


§74.]  "TWO  LIVES  IN  BEING."  39 

forth  in  a  will  may  be  such  that  it  would  be  invalid  if 
the  testator  should  die  while  the  facts  existing  at  the 
date  of  execution  of  the  will  still  continued  to  exist,  as 
for  example  a  trust  for  the  receipt  and  application  of 
rents  and  profits,  created  by  the  will  of  a  testator  hav- 
ing three  children,  to  continue  until  the  death  of  all  his 
children ;  yet  the  same  identical  scheme  may  prove  valid 
if,  before  his  death,  the  facts  have  changed,  as  for  ex- 
ample, in  the  case  supposed,  if  one  of  the  children  had 
in  the  meantime  died.  For  at  the  time  of  testator's 
death,  which  is  the  time  as  from  which  the  will  speaks, 
there  would  only  be  two  persons  then  in  being  whose 
lives  would  measure  the  term.1 

"  Two  Lives  in  Being." 

§  74.  As  this  statutory  term  2  applies  equally  and  in 
the  same  sense,  to  suspension  occasioned  by  contin- 
gencies, trusts  and  powers  in  trust ;  to  postponement  of 


1  Griffon  v.  Ford,  1  Bosw.  123,  137;  Lang  v.  Ropke,  5  Sandf.  S.  C.  363; 
Lang  v.  Wilbraham,  2  Duer.  175;  Eels  v.  Lynch,  8  Bosw.  465,  475;  Oxley 
v.  Lane,  35  N.  Y.  340,  344,  346;  Matteson  v.  Palser,  173  N.  Y.  404,  411, 
412;  Coston  v.  Coston,  118  App.  Div.  1,  3;  Benedict  v.  Webb,  98  N.  Y. 
460,  465;  Matter  of  Raymond,  73  App.  Div.  11;  Matter  of  Pillsbury,  50 
Misc.  367,  aff'd  113  App.  Div.  893,  aff'd  186  N.  Y.  545.     Also  Hughes  v. 
Mackin,  16  App.  Div.  291 ;  Matter  of  Chapman,  133  App.  Div.  337,  ap- 
peal dismissed,  196  N.  Y.  561;  Matter  of  Hoffman,  201  N.  Y.  247;  Graham 
v.  Graham,  49  Misc.  4;  Tallman  v.  Tallman,  3  Misc.  465;  Galway  v.  Bryce, 
10  Misc.  255,  257;  McArthur  v.  Scott,  113  U.  S.  340,  382,  and  many  other 
cases  cited  in  Gray,  Perpetuities,  2nd  Ed.,   §  231.     This  principle  is  also 
accepted  in  the  English  cases,  Farwell  on  Powers,  1st  Ed.  p.  226 ;  Lewis, 
Perpetuities,    27,   and  supplement,  53-57;   Gray,  Perpetuities,  2nd  Ed., 
§231;  Marsden,  Pule  against  Perpetuities,  67;  Dungannon  v.  Smith,  12 
CI.  &  F.  546;  Southern  v.  Wollaston,  16  Beav.   166,  276;  Hale  v.  Hale,  3 
Ch.  D.  643,  645;  McArthur  v.  Scott,  113  U.  S.  340,  382;  4  Kent  Comm., 
12th  Ed.,  283,  note  1,  citing  cases.     The  cases  of  Hawley  v.  James,  16 
Wend.  61,  120,  and  Odell  v.  Youngs,  64  How.  Pr.  56,  are  contra,  and  are 
now  overruled,  and  the  decisions  on  which  the  opinion  in  the  latter  case  is 
based,  have  no  bearing  on  the  point. 

s  Real  Prop.  L.  §  42;  Pers.  Prop.  L.  §  11. 


40  GENERAL  PRINCIPLES.  [CH.  II. 

vesting,  and  to  suspension  of  the  absolute  ownership 
of  personal  property,  cases  representing  all  these  classes 
will  here  be  cited  indiscriminately. 

Two  Lives  the  Necessary  Measure.     Exception. 

§  75.  In  all  these  cases,  the  term  of  suspension,  or 
the  term  of  postponement  of  vesting  of  remainders,  as 
the  case  may  be,  must  be  bounded  strictly  by  not  more 
than  two  designated  lives,  in  being  at  the  "  creation  of 
the  estate,"  1  except  only  in  the  particular  cases,  re- 
lating solely  to  real  property,  where  the  suspension,  or 
the  postponement  of  vesting,  is  by  statute  permitted  to 
continue  during  a  further  minority,  a  subject  which  is 
discussed  in  later  sections. 

§  76.  Thus  it  will  not  answer  to  provide  that  the  sus- 
pension shall  continue  during  "  the  time  prescribed  by 
the  statute  governing  perpetuities."  The  statute  pre- 
scribes no  time.  It  requires  the  grantor  or  testator  to 
designate  lives  in  being.2  And  no  term  of  years,  how- 
ever short,  will  satisfy  the  statute.3  So  it  is  not  per- 
missible to  provide  for  a  suspension  or  postponement 
measured  without  reference  to  one  or  to  two  lives  in 


1  Fargo  v.  Squiers,  154  N.  Y.  250;  Henderson  v.  Henderson,  113  N.  Y. 
1 ;  Hawley  v.  James,  16  "Wend.  61,  127  et  seq.;  and  169  et  seq.;  Woodgate 
v.  Fleet,  64  N.  Y.  566,  572  ;  Matter  of  Wilcox,  194  N.  Y.  288;  Real  Prop- 
erty Law,  §  42;  Pers.  Prop.  L.  §  11;  and  as  to  postponement  of  vesting, 
the  statutes  cited  in  Chapter  VI.  And  in  determining  whether,  in  a  given 
case,  the  number  of  lives  by  which  the  term  is  measured  may  exceed  two, 
or  may  be  those  of  persons  not  in  being  at  the  creation  of  the  estate,  the 
law  will  not  assume  that  any  living  person  ic  too  old  to  have  children  born 
in  future.  Miller  v.  Macomb,  26  "Wend.  229,  234;  Taggart  v.  Murray,  53 
N.  Y.  233,  239  ;  Gray,  Perpetuities,  2nd  Ed.,  §  215. 

2  Matter  of  Mead,  27  State  Rep.  36;  Matter  of  Fisher,  8  N.  Y.  Supp.  10; 
Simpson  v.  Cook,  24  Minn.  180. 

3  Underwood  v.  Curtis,  127  N.  Y.  523,  538  (as  to  which  case  see  Chap. 
VII):  McGuire  v.  McGuire,  80  App.  Div.  63;  Farmers'  Loan  &  Trust 
Co.  v.  Cummings,  108  N.  Y.  Supp.  882. 


§  76.]  TWO  LIVES  THE  MEASURE.     EXCEPTION.  41 

being;1  or  for  twent3T-one  years;2  or  until  a  partition 
shall  be  actually  effected ; 3  or  until,  within  two  years,  a 
sum  shall  be  raised  sufficient  to  pay  off  a  mortgage;4 
or  until,  from  the  rents,  a  mortgage  on  the  property 
shall  be  satisfied ; 5  or  until  the  twenty-first  anniversary 
of  a  designated  minor's  birth,  irrespective  of  whether 
he  shall  live  to  come  of  age  or  not;6  or  for  a  specified 
term  of  years ; 7  or  until  any  fixed  future  date ; 8  or  for 
a  number  of  lives  more  than  two;9  or  during  the  life 


1  Edson  v.  Fairchild,  154  N.  Y.  199;  Rice  v.  Barrett,  102  N.  Y.  161, 
164;  Tucker  v.  Tucker,  5  N.  Y.  408,  417;  Smith  v.  Edwards,  88  N.  Y. 
92;  Beekman  v.  Bonsor,  23  N.  Y.  298,  316;  Phelps'  Ex'r  v.  Pond,  23  N. 
Y.  69;  Rose  v.  Rose,  4  Abb.  Ct.  App.  Dec.  108,  113;  Bean  v.  Bowen,  47 
How.  Pr.  306;  DeWolf  v.  Lawson,  61  Wis.  469;  Morgan  v.  Masterton,  4 
Sandf.  442,  449. 

2  Hone's  Executors  v.  Van  Schaick,  20  Wend.  564;  Farrand  v.  Pettit 
(Mich.),  48  N.  W.  Rep.  156;  and  see  Lee  v.  Tower,  124  N.  Y.  370;  S.  C. 
26  N.  E.  Rep.  943,  giving  General  Term  opinion  approved  in  court  above. 

3  Henderson  v.  Henderson,  113  N.  Y.  1,  15. 

4  Booth  v.  Baptist  Church,  126  N.  Y.  215,  241;  Killam  v.  Allen,  52 
Barb.  605;  Dresser  v.  Travis,  39  Misc.  358,  aff'd  87  App.  Div.  632. 

5  Dodsworth  v.  Dam,  38  Misc.  684. 

6  Walsh  v.  Waldron,  63  Hun,  315,  aff'd  135  N.  Y.  650. 

7  Kalish  v.  Kalish,  166  N.  Y.  368;  Lee  v.  Tower,  124  N.  Y.  370,  approv- 
ing opinion  below,  given  in  26  N.  E.  Rep.  943;  Walter  v.  Walter,  60 
Misc.  383,  aff'd  133  App.  Div.  893,  aff'd  197  N.  Y.  606;  Matter  of  Phillips, 
56  Misc.  96;  Matter  of  Snyder,  21  K  Y.  Supp.  430;  Donaldson  v. 
American  Tract  Society,  1  T.  &  C,  Addenda,  p.  15;  Brandt  v.  Brandt,  13 
Misc.  431. 

8  DeKay  v.  Irving,  5  Den.  646,  652;  Staples  v.  Hawes,  39  App.  Div. 
548;  Trowbridge  v.  Metcalf,  5  App.  Div.  318,  aff'd  158  N.  Y.  682. 

9  Almstaedt  v.  Bendick,  47  App.  Div.  265;  La  Farge  v.  Brown,  31  App. 
Div.  542;  Haug  v.  Schumacher,  166  K  Y.  506,  512;  Bindrim  v.  Ullrich, 
64  App.  Div.  444,  app.  dismissed,  173  N.  Y.  587 ;  Leavitt  v.  Wolcott,  95 
N.  Y.  212,  218;  Persons  v.  Snook,  40  Barb.  144,  155;  Ward  v.  Ward,  105 
N.  Y.  68;  Colton  v.  Fox,  67  N.  Y.  348;  Thorn  v.  Coles,  3  Edw.  Ch.  330; 
McSorley  v.  Leary,  4  Sandf.  Ch.  414;  Shipman  v.  Rollins,  98  N.  Y.  311, 
330;  Richards  v.  Moore,  5  Redf.  278;  Hobson  v.  Hale,  95  X.  Y.  588,  597, 
610,  612,  616;  Storm  v.  Storm,  4  St.  Rep.  670,  aff'd  113  N.  Y.  646;  Matter 
of  Russell,  5  Dem.  388;  Fowler  v.  Ingersoll,  127  N.  Y.  472;  Giraud  v. 
Giraud;  58  How.  Pr.  175;  Bean  v.  Hockman,  31  Barb.  78;  Van  Vechten  v. 
Van  Vegbten,  8  Pai.  104;  Jennings  v.  Jennings,  7  X.  Y.  547;  Schnarr  v. 
Henning,  X.  Y.  Daily  Reg.  Dec.  23,  1882;  O'Brien  v.  Mooney,  5  Duer, 
51. 


42  GENERAL  PRINCIPLES.  [CH.  II. 

of  a  person  as  yet  unborn ; 1  or  until  all  of  several 
minors,  more  than  two,  reach  majority;2  or  until  the 
youngest,  of  more  than  two,  to  reach  majority,  shall  do 
so;3  or  to  continue,  under  any  designation,  after  two 
lives  in  being,  except  in  the  special  case  covered  by 
Real  Property  Law,  §  42 ; 4  or  in  perpetuity.5 

§  77.  But  if  a  testator,  after  making  a  void  disposi- 
tion of  his  property,  provides  an  alternative  disposi- 
tion, valid  in  itself,  in  the  event  that  the  first  should  be 
adjudged  or  prove  invalid  or  its  execution  impossible, 
by  judicial  decision,  this  alternative  disposition  will 
not  be  void  on  the  ground  of  attempting  to  effect  a  sus- 
pension for  an  indefinite  period,  namely,  until  a  judi- 
cial decision  is  reached  on  the  validity  of  the  first  dis- 
position. The  judgment  does  not  create  the  validity  or 
invalidity.  The  second  scheme  of  disposition  takes 
effect  instanter  on  testator's  death,  if  as  a  matter  of 
fact  the  first  is  void.  The  subsequent  decision  of  the 
court  does  not  effect  any  result  at  its  own  date  other 
than  to  ascertain  what  did  happen  at  testator's  death.6 


1  Matter  of  Martial,  15  N.  Y.  Supp.  89;  Matter  of  Faile,  44  Misc.  619. 

2  Hawley  v.  James,  16  Wend.  61 ;  Matter  of  Butterfield,  133  N.  Y.  473 ; 
Brown  v.  Quintard,  177  K  Y.  75;  Ahearn  v.  Ahearn,  52  App.  Div.  356; 
Matter  of  Lally,  136  App.  Div.  781,  aff'd  198  N.  Y.  608. 

3  Levy  v.  Hart,  54  Barb.  248;  see  also  Matter  of  Martial,  15  N.  Y. 
Supp.  89. 

4  Cowen  v.  Rinaldo,  82  Hun,  479. 

5  Walker  v.  Taylor,  15  App.  Div.  452;  Guental  v.  Guental,  113  App. 
Div.  310;  Matter  of  Dewitt,  113  App.  Div.  790,  aff'd  188  N.  Y.  567.  See 
also  Matter  of  Trotter,  182  N.  Y.  465 ;  Herzog  v.  Title  Guarantee  &  Trust 
Co.,  177  N.  Y.  86;  Schlereth  v.  Schlereth,  173  N.  Y.  444;  Matter  of 
Wilcox,  194  N.  Y.  288.  Although  the  will  in  Beers  v.  Grant,  110  App. 
Div.  152,  as  construed,  would  evidently  effect  a  suspension  of  alienability 
for  one  life  plus  one  moment,  it  should  be  clear  that  the  decision  was  not 
intended  to  support  any  such  proposition;  the  question  does  not  seem  to 
have  been  raised,  and  the  result  arrived  at  could  be  fully  supported  by 
another  form  of  statement,  without  involving  this  difficulty,  and  the  affirm- 
ance, 185  N.  Y.  533,  without  opinion,  lends  no  weight  to  a  mere  form  of 
expression  below. 

6Cruikshank  v.  Home  for  the  Friendless,  113  N.  Y.  337. 


§  78.]  DESIGNATION  OF  THE  LIVES.  43 

Designation  of  the  Lives. 

§  78.  Although  both  of  the  lives  by  which  the  dura- 
tion of  a  term  is  to  be  measured,  must  be  "  in  being  "  at 
the  creation  of  the  estate,  it  is  not  necessary  that  the 
lives  should  be  expressly  named,  as  such,  as  the  measure 
of  duration.  The  term  may  be  ascertained  from  the 
nature  of  the  purposes  expressed,  when  they  are  such 
as  to  effect  a  necessary  limitation.1  For  "  when  the 
purpose  for  which  an  express  trust  is  created  ceases,  the 
estate  of  the  trustee  shall  also  cease."  2  And  if  the  pur- 
pose of  a  limitation  which  effects  a  suspension  must, 
in  its  nature,  be  accomplished  during  the  life  of  one  or 
of  two  persons  in  being,  a  resulting  suspension  is  suffi- 
ciently limited,  without  more  express  definition.3  But 
the  death  of  the  trustee  or  his  resignation  or  removal 
will  not  defeat  the  trust.  Nor  would  his  unauthorized 
conveyance  to  the  beneficiary.4  Although,  if  the  testa- 
tor should  validly  provide  that  the  trust  should  be  exe- 
cuted by  the  trustee  named  by  him,  or  not  at  all,  the 
term  would  end  with  his  death,  resignation  or  removal.5 
The  failure  of  purpose  of  a  proposed  trust  may  occur 
before  the  time  arrives  for  the  trust  to  begin.6    The  stat- 


1  Matter  of  Smith,  131  N.  Y.  239. 

2  Real  Prop.  L.  §  109;  Kip  v.  Hirsh,  103  N.  Y.  565;  Nicoll  v.  Wal- 
worth, 4  Den.  385,  388,  and  cases  cited ;  Watkins  v.  Reynolds,  123  N.  Y. 
211;  Montgomery  v.  Merrill,  18  Mich.  338,  343;  Stevens  v.  Earl,  25  Mich. 
41;  Hopkins  v.  Kent,  145  N.  Y.  363;  Benedict  v.  Dunning,  110  App.  Div. 
303 ;  Manice  v.  Manice,  43  N.  Y.  303,  363. 

3 Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  147;  Felter  v.  Ackerson,  35 
App.  Div.  282.  See  Manice  v.  Manice,  43  K  Y.  303,  363;  Crooke  v. 
County  of  Kings,  97  N.  Y.  421,  439. 

4  Douglas  v.  Cruger,  80  N.  Y.  15,  18. 

6  For  the  principle  on  this  particular  point,  cf.  Beekman  v.  Bonsor,  23 
N.  Y.  298,  303;  et  seq.  Hawley  v.  James,  16  Wend.  61,  140  et  seq.  And 
this  failure  of  purpose  may  in  some  cases  be  presumed  from  lapse  of  time, 
Kip  v.  Ilirsh,  103  N.  Y.  565,  and  independent  of  Real  Property  Law 
§  110,  relating  to  presumption  of  termination  in  general  assignments  for 
benefit  of  creditors. 

6  Hughes  v.  Mackin,  16  App.  Div.  291. 


44  GENERAL  PRINCIPLES.  [CH.  II. 

nte  in  relation  to  powers  does  not  now,  as  it  once  did,1 
incorporate  the  foregoing  statutory  provision  that 
trusts  end  when  their  purposes  cease,  yet  the  same 
principle  does  apply  to  powers  also,  in  the  nature  of 
the  case  as  well  as  by  analogy.2 

§  79.  And  further,  it  is  not  essential,  in  measuring  a 
term  of  suspension  or  postponement,  that  the  two  lives 
should  both  be  specifically  identified  at  the  creation  of 
the  estate.  It  may  be  enough  that  one  is  thus  made 
known,  and  that  provision  is  duly  made  for  the  positive 
ascertainment  of  the  other  upon  the  termination  of  the 
first.  For  example,  a  will  provided,  among  other 
things,  for  a  trust  during  the  life  of  testator's  widow, 
and  after  her  death  if  a  son  J  survived  her,  then  for  a 
further  trust  as  to  half  the  estate  during  J's  life  or 
until  he  reached  the  age  of  thirty,  but  if  he  did  not  sur- 
vive her,  then  during  the  life  of  testator's  daughter 
K.  Thus  during  the  first  designated  life,  that  of 
the  widow,  it  was  uncertain  as  to  one  half  of  the 
estate,  whether  the  second  life  wTould  be  that  of  J  or  K. 
And  this  scheme  was  held  valid.3  So  it  is  sufficient  to 
provide  that  a  suspension  shall  continue  during  the 
grantor's  life,  and  after  his  death  then  during  the  life 
of  such  one  of  the  "  now  living  "  children  of  B  as  shall 
then  be  the  youngest  one  living.4  In  such  a  case  there 
is  at  no  time  during  the  term  any  uncertainty  about  the 
identity  of  the  particular  life  on  which  its  continuance 
is  then  depending.     And  so  also  where  an  open  and  a 


1  Harvey  v.  Brisbin,  50  Hun,  376,  379,  aff'd  143  N.  Y.  151;  Sweeney  v. 
Warren,  127  N.  Y.  426. 

'Greenland  v.  Waddell,  116  N.  Y.  234,  246;  Hetzel  v.  Barber.  69  N.Y. 
1,  12;  Garvey  v.  McDevitt,  72  N.  Y.  556,  563;  Trask  v.  Sturges,  170 
K  Y.  482,  489. 

3  Schermerhorn  v.  Cotting,  131  N.  Y.  48.  See  also  Van  Brunt  v.  Van 
Brunt,  111  N.  Y.  178,  184,  as  to  the  provision  for  a  wife  whom  an  un- 
married man  might  leave  surviving  him,  as  to  which  compare  §  85,  infra. 

4  Van  Cott  v.  Prentice,  104  N.  Y.  45,  56,  57. 


§81.]  PART  OF  A  LIFE  IS  A  "LIFE."  45 

sealed  paper  were  delivered  to  the  trustee,  one  provid- 
ing for  the  disposition  of  the  income  during  the  gran- 
tor's life,  and  the  other,  which  was  not  to  be  opened 
until  his  death,  providing  for  the  subsequent  disposi- 
tion. Together  they  constitute  one  complete  instru- 
ment, and  it  is  of  no  consequence  that  the  provisions 
are  only  revealed  as  they  are  needed.1  But  if  any  un- 
certainty can  exist  as  to  whose  life  it  is  that  is  measur- 
ing the  term  at  any  given  time,2  the  scheme  is  void,  as 
seen  in  the  cases  considered  in  §  84. 

Any  Two  Lives  may  be  Designated. 

§  80.  The  persons  whose  lives  are  designated  as  the 
"  two  lives  in  being,"  need  not  be  beneficiaries  of  the 
trust,  or  otherwise  interested  in  any  of  the  limitations. 
They  may  be  any  persons  in  being.3  The  fact  that  if 
the  life  of  a  person  not  a  beneficiary  is  designated  to 
measure  the  trust  term,  the  beneficiaries  may  all  die 
before  the  end  of  his  life,  presents  no  difficulty.  The 
trust  in  that  case  is  to  last  during  the  designated  life 
or  less, — that  is,  will  terminate  short  of  the  end  of  the 
designated  life  if  the  objects  pass  out  of  existence.4 

Part  of  a  Life  is  a  "  Life." 

§  81.  Although  the  term  must  be  measured  by  lives, 
it  need  not  continue  throughout  two  complete  lives.     It 


1  Van  Cott  v.  Prentice,  104  N.  Y.  45. 

2  Brown  v.  Evans,  34  Barb.  594;  Bean  v.  Hockman,  31  Barb.  78. 
8Crooke  v.  County  of  Kings,  97  N.  Y.  421,  435;  Bailey  v.  Bailey,  97 

N.  Y.  460,  467;  Bevins  v.  Riley,  24  Weekly  Digest,  35;  Stringer  v.  Young, 
191  N.  Y.  157;  thus  overruling  a  dictum  to  the  contrary  in  Downing  v. 
Marshall,  23  N.  Y.  366,  377.  See  also  Haxtun  v.  Corse,  2  Barb.  Ch.  506 ; 
Butler  v.  Butler,  3  Barb.  Ch.  304;  Gilman  v.  Reddington,  24  N.  Y.  9; 
Manice  v.  Manice,  43  N.  Y.  303,  386 ;  Woodgate  v.  Fleet,  64  N.  Y.  566. 
570 ;  Provost  v.  Provost,  70  K  Y.  141. 

4Crooke  v.  Co.  of  Kings,  97  N.  Y.  421,  435-441;  Bailey  v.  Bailey.  97  N 
Y.  460,  466;  Thebaud  v.  Schermerhorn,  30  Hun,  332. 


46  GENERAL  PRINCIPLES.  [CH.  II. 

may  be  shorter  than  they,  although  it  must  not  be 
longer.  The  statutes  permit  suspension,  or  postpone- 
ment of  vesting,  during  two  lives  in  being,  or  one  life, 
or  any  portion  thereof.  Thus  a  term  of  suspension  to 
continue  until  A  reaches  the  age  of  35  or  earlier  dies ; l 
or  for  the  life  of  A,  unless  A  live  beyond  a  specified 
date,  and  in  that  case  to  terminate  on  that  date,2  is 
valid.  And  a  suspension  for  a  specified  part  of  a  life 
exhausts  the  privilege,  to  the  extent  of  one  life,  as  com- 
pletely as  if  an  entire  life  had  been  named.3 

A  Minority  is  a  "  Life." 

§  82.  The  minority  of  a  given  person  may  properly 
be  designated  as  a  "  life  in  being  "  by  which  a  term  of 
suspension  is  to  be  measured,  or  during  which  the  vest- 
ing of  a  remainder  is  to  be  postponed.  In  such  a  case 
the  designated  minority  counts  as  one  entire  "  life,"  or, 
as  the  phrase  goes,  "  a  minority  is  a  life."  4  Accord- 
ingly, a  suspension  for  two  minorities  is  equivalent  to 
a  suspension  for  two  lives,  and  when  the  two  minori- 
ties have  ended,  two  "  lives,"  in  the  statutory  sense, 
have  also  ended,  and  the  suspension  must  cease.  And 
a  suspension  during  two  minorities  and  the  further  life 
of  a  third  person,  violates  the  statute;  it  is  a  suspen- 
sion for  three  lives.5  And  so  does  a  suspension  for  more 
minorities   than   two ; 6    but   a   suspension   to   continue 


1  Sawyer  v.  Cubby,  146  N.  Y.  192. 

2  See  De  Kay  v.  Irving,  5  Den.  646,  652;  Matter  of  Verplanck,  91  N.  Y. 
439. 

3  Cases  cited  in  the  following  section,  including  Benedict  v.  Webb,  98 
N.  Y.  460,  466. 

4  Benedict  v.  Webb,  98  N.  Y.  460,  466;  Oxley  v.  Lane,  35  N.  Y.  340; 
Savage  v.  Burnham,  17  N.  Y.  561,  572;  Jacoby  v.  Jacoby,  188  N.  Y.  124. 

5  Benedict  v.  Webb,  98  N.  Y.  460,  466. 

6Hawley  v.  James,  16  Wend.  61;  Matter  of  Butterfield,  133  N.  Y.  473; 
Brown  v.  Quintard,  177  N.  Y.  75;  Ahearn  v.  Ahearn,  52  App.  Div.  356; 
Levy  v.  Hart,  54  Barb.  248.  These  statements  are  subject  to  an  excep- 
tion in  the  special  case  covered  by  Real  Prop.  L.  §  42. 


§  82.]  A  MINORITY  IS  A  "  LIFE."  47 

during  two  minorities,  and  thereafter  during  the  fur- 
ther life  of  one  of  the  same  persons  is  valid.  For  a  sus- 
pension during  the  minority  of  a  given  individual  and 
a  further  suspension  during  the  rest  of  the  life  of  the 
same  person,  does  not  differ  in  legal  effect  from  a  single 
suspension  in  the  first  instance  during  the  life  of  that 
person.1  Where  the  life  or  minority  of  an  infant  is 
utilized  to  represent  one  of  the  "  two  lives  "  which  may 
be  employed  as  a  measure  of  the  term  of  suspension,  it 
must,  like  any  "  life  "  so  employed  be  that  of  a  person 
in  being  at  the  creation  of  the  estate.2  For  this  pur- 
pose, the  lives  of  infants  not  in  being  will  not  answer.3 
But  an  infant  after  its  birth,  is  to  be  regarded  as  hav- 
ing been  in  being  when  en  ventre  sa  mere.*  When  a 
term  of  suspension  is  measured  by  a  minority,  it  is 
assumed,  unless  a  contrary  intent  appear,5  that  the  sus- 
pension was  intended  to  cease  upon  the  earlier  death 
of  the  designated  person,  during  his  minority,  and  as 
so  construed,  the  term  is  valid.6  But  if  a  grantor  or 
testator  should  attempt  to  create  a  suspension  to  con- 
tinue during  minority  or,  in  case  of  the  earlier  ending 
of  the  designated  life,  until  the  minor  would  have  come 


1  Benedict  v.  Webb.  98  N.  Y.  460,  466. 

2  Schlereth  v.  Schlereth,  173  N.  Y.  444.  A  different  rule  applies,  how- 
ever, where  a  suspension  or  postponement,  is  to  continue  for  an  additional 
minority  in  the  exceptional  case  provided  for  in  Real  Property  Law,  §  42. 
See  §  86,  infra. 

3  See  Woodgate  v.  Fleet,  64  N.  Y.  566,  572;  Schlereth  v.  Schlereth,  173 
N.  Y.  444. 

*  Infra,  §  83. 

5  Titus  v.  Weeks,  37  Barb,  136. 

6Oxley  v.  Lane,  35  K  Y.  340,  345;  Butler  v.  Butler,  3  Barb.  Ch.  304; 
Lang  v.  Ropke,  5  Sandf.  (S.  C.)  363,  369;  Jacoby  v.  Jacoby,  188  K  Y. 
124;  Matter  of  Lally,  136  App.  Div.  781,  aff'd  198  N.  Y.  608;  Becker  v. 
Becker,  13  App.  Div.  342;  Stehlin  v.  Stehlin,  67  Hun,  110;  Matter  of 
Moloughney,  67  App.  Div.  148.  See  also  Toher  v.  Crounse,  57  Misc. 
252;  Matter  of  Mikantowicz,  60  Misc.  273.  See  "at  my  son  John  be- 
coming of  age,"  McGowan  v.  McGowan,  2  Duer,  57. 


48  GENERAL  PRINCIPLES.  [CH.  II. 

of  age  if  he  had  lived,  the  term  would  not  be  duly 
limited.1 

The  Period  of  Gestation. 

§  83.  When  under  the  two  Rules  relating  respec- 
tively, in  the  case  of  real  property,  to  alienability  and 
to  vesting,  and  the  Rule  relating,  in  the  case  of  per- 
sonal property,  to  absolute  ownership,  it  is  of  conse- 
quence to  determine  just  when  a  given  life  begins,  the 
controlling  principle  is  that  after  birth,  a  child  is 
deemed  to  have  been  already  in  being  while  en  ventre  sa 
mere.  This  proposition  in  no  way  adds  to  or  qualifies 
the  maximum  statutory  term  of  two  lives  in  being  and 
in  certain  exceptional  cases  a  further  actual  minority. 
The  lives  or  minorities  of  persons  designated  with  ref- 
erence to  the  measuring  of  the  term,  or  as  beneficiaries, 
devisees  or  legatees,  are  merely  regarded  as  including 
the  additional  period  before  actual  birth.  It  is  possible 
that  literally  considered  there  might  be  certain  phases 
or  features  included  in  these  sweeping  propositions,  not 
strictly  settled  by  the  cases.  But  the  principle  is  well 
established  and  often  applied,  and  the  tendency  is  to 
give  it  general  application  within  the  scope  of  the 
Rules.2 


'Walsh  v.  Waldron,  63  Hun,  315,  affd  135  N.  Y.  650;  Haynes  v. 
Sherman,  117  N.  Y.  433;  Hagemeyer  v.  Saulpaugh,  97  App.  Div.  535; 
Ahearn  v.  Ahearn,  52  App.  Div.  536 ;  Field  v.  Field's  Exrs. ,  4  Sandf .  Ch. 
563;  Boynton  v.  Hoyt,  1  Den.  53.  See  Burke  v.  Valentine,  52  Barb.  412, 
said  in  137  App.  Div.  869,  to  have  been  affirmed,  6  Alb.  L.  J.  167.  Com- 
pare Coston  v.  Coston,  118  App.  Div.  1;  Keenan  v.  Keenan,  122  App. 
Div.  435.  See  also  Real  Prop.  L.  §  42  ;  In  re  Sand's  Will,  3  N.  Y.  Supp. 
67,  S.  C.  20  State  Rep.  850,  and  infra,  %  84. 

2  Cooper  v.  Heatherington,  65  App.  Div.  561 ;  Smith  v.  Edwards,  88 
N.  Y.  92,  110;  Arnot  v.  Arnot,  75  App.  Div.  230;  Marsellis  v.  Thalhimer, 
2  Pai.  35;  Jenkins  v.  Freyer,  4  Pai.  47,  53;  Mason  v.  Mason's  Exrs.,  2 
Sandf.  Ch.  432,  aff'd  2  Barb.  229;  Gott  v.  Cook,  7  Pai.  521;  Schlereth 
v.  Schlereth,  173  N.  Y.  444,  449;  Thomas,  Law  of  Estates  Created  by 
Will,  Vol.  I,  p.  403;  Gray,  Perpetuities,  2nd  Ed.,  §  220-222;  Fowler, 
Real  Property  Law,  3rd  Ed.,  p.  269,  note  85;  Reeves,  Real  Property,  Vol. 


§84.]      LIFE  OF  "  ELDEST  "  OR  "  YOUNGEST  "  CHILD.  49 

Life  of  "  Eldest  "  or  "  Youngest  "  Surviving  Child. 

§  84.  A  provision  that  a  term  shall  continue  until 
the  majority,  or  until  some  other  specified  age,  of  the 
"  eldest  surviving  child,"  or  of  the  "  youngest  surviv- 
ing child,"  is  evidently  ambiguous.1  The  word  "  sur- 
viving "  might  mean  "  surviving  at  the  creation  of  the 
estate,"  or  it  might  mean  "  surviving  to  reach  major- 
ity "  or  other  specified  age,  or  surviving  at  some  future 
time  though  not  in  being  at  the  creation  of  the  estate. 
The  former  meaning,  being  specific,  and  pointing  out 
an  individual  living  and  ascertainable  when  the  term 
of  suspension  begins,  renders  the  designation  valid,  for 
in  no  event  could  the  term  extend  beyond  the  majority 
or  earlier  death  of  a  certain  person  capable  of  identi- 
fication immediately  upon  the  creation  of  the  estate.2 
If,  however,  in  any  given  case,  the  phrase  under  discus- 
sion means  "the  eldest  (or  youngest)  child  who  sur- 
vives to  reach  majority,"  or  any  other  specified  age, 
it  necessarily  defers  to  a  future  time  the  determin- 
ation as  to  who  will  be  the  eldest,  or  the  youngest, 
to  attain  that  age;  and  if  the  life  of  the  survivor  is 
employed  as  one  of  the  two  "  lives  ':  to  measure  the 
term,  and  there  are  more  than  two  persons  in  the  class 
designated  or  if  the  meaning  is  such  that  the  survivor 


II,  §  960.  Posthumous  children,  Real  Prop.  L.,  §  56;  Decedent  Estate 
Law,  §  93. 

1  Matteson  v.  Palser,  173  N.  Y.  404,  411-412;  Schlereth  v.  Schlereth, 
173  N.  Y.  444,  451. 

5  Jacoby  v.  Jacoby,  188  N.  Y.  124;  Matter  of  Lally,  136  App.  Div.  781, 
785;  Matter  of  Dippel,  71  App.  Div.  598;  Matter  of  Moloughney,  67  App. 
Div.  148;  Becker  v.  Becker,  13  App.  Div.  342;  Van  Cott  v.  Prentice,  104 
N.  Y.  45,  56-7;  Burke  v.  Valentine,  52  Barb.  412,  aff'd  6  Alb.  Law  J. 
167;  Stehlin  v.  Stehlin,  67  Hun,  110;  Coston  v.  Coston,  118  App.  Div.  1; 
James  v.  Beasley,  14  Hun,  520;  In  re  Sand's  Will,  3  N.  Y.  Supp.  67,  20 
State  Rep.  850,  and  cases  cited ;  Neaves  v.  Neaves,  37  Hun,  438.  See  Roe 
v.  Vingut,  117  N.  Y.  204;  Simpson  v.  Cook,  24  Minn.  180,  185;  Drake  v. 
Pell,  Edw.  Ch.  251;  Eells  v.  Lynch,  8  Bosw.  465;  Stewart  v.  McMartin, 
5  Barb.  438. 


50  GENERAL  PRINCIPLES.  [CH.  II. 

might  be  a  person  not  in  being  at  the  creation  of  the 
estate,  the  provision  is  void.1  But  even  if  such  is  the 
meaning  it  is  necessary,  in  order  to  raise  any  question 
of  invalidity,  to  show  affirmatively  that  the  facts  as 
existing  at  the  creation  of  the  estate  were  still  such 
that  an  illegal  suspension  might  result.2  And  in  the 
absence  of  an  evident  intent  to  the  contrary  it  will  be 
presumed  that  the  intended  meaning  of  the  phrase  is 
that  which  will  render  it  valid.3 

Life  of  "  Wife;  "  "  Widow;  "  "  Husband." 

§  85.  The  necessity  of  employing  lives  "  in  being  " 
to  measure  the  term  of  suspension  is  well  illustrated  in 
Schettler  v.  Smith*  where  a  testator  created  a  trust 
for  his  son  Lawrence  for  life,  and  on  his  death  for 
Lawrence's  "  widow  "  for  her  life.  Lawrence  was  then 
married,  but  in  view  of  all  the  terms  of  the  will,  the 
court  held  that  the  testator  did  not  intend,  in  using  the 
word  "  widow  "  to  refer  exclusively  to  Lawrence's  then 
living  wife,  but  meant  to  refer  generally  to  any  wife 
whom  Lawrence  might  have  at  the  time  of  his  death, 
and  who  might  therefore  be  a  person  not  in  being  at 


1  Jennings  v.  Jennings,  7  N.  Y.  547;  Hawley  v.  James,  16  Wend.  61 
120;  Matter  of  Butterfleld,  133  N.  Y.  473;  Schlereth  v.  Schlereth,  173  N.  Y. 
444;  Greenland  v.  Waddell,  116  N.  Y.  234,  244;  Titus  v.  Weeks,  37  Barb. 
136;  Brown  v.  Evans,  34  Barb.  594;  Bean  v.  Hockman,  31  Barb.  78; 
Thompson  v.  Carmichael's  Ex'rs,  1  Sandf.  Ch.  387. 

2  See  infra,  §§  114,  115. 

3  Jacoby  v.  Jacoby,  188  N.  Y.  124,  130;  Coston  v.  Coston,  118  App. 
Div.  1;  In  re  Sand's  Will,  3  N.  Y.  Supp.  67;  Butler  v.  Butler,  3  Barb. 
Ch.  304,  309;  Matter  of  Dippel,  71  App.  Div.  598;  Matter  of  Lally,  136 
App.  Div.  781,  787,  aff'd  198  N.  Y.  608;  see  also  Toher  v.  Crounse,  57 
Misc.  252;  Matter  of  Mikantowicz,  60  Misc.  273;  O'Keeffe  v.  Westphal, 
139  App.  Div.  79. 

4  41  N.  Y.  328,  "  3d  " ;  331,  "  4th  " ;  338  et  seq.;  346  et  seq.  See  also  on  the 
same  point,  Tiers  v.  Tiers,  98  N.  Y.  568,  573 ;  Stevens  v.  Miller,  2  Dem. 
597;  Lee  v.  Lee,  2  How.  Pr.  (N.  S.)  76;  Mason  v.  Jones,  2  Barb.  229,  247, 
aff'd  see  2  N.  Y.  327;  Wright  v.  Mercein,  34  Misc.  414. 


§  86.]  THE  ADDITIONAL  TERM  OF  MINORITY.  51 

testator's  death;  and  the  provision  for  Lawrence's 
widow  was  declared  void.1  And  where  the  same  testa- 
tor made  the  same  provision  for  his  son  John,  who  was 
then  unmarried,  the  same  result  would  no  doubt  follow.2 
But  in  the  same  case  it  was  intimated  that  if  a  trust 
were  created  for  the  life  of  A,  a  married  man,  and  then 
for  the  life  of  "  his  wife,"  simply,  the  phraseology 
would  be  understood  to  designate  A's  then  living  wife 
only,  and  to  create  a  valid  measure  for  the  term.3  In 
such  a  case,  where  there  were  seven  children  who  were 
married  and  one  who  was  unmarried,4  the  court  say 
"  We  do  not  think  the  construction  should  be  changed 
when  we  come  to  the  case  of  the  unmarried  son,  for, 
though  the  trust  was  divisible,  it  was  created  at  once 
for  all  the  children,  and  by  a  common  description  and 
expression."  5  It  is  to  be  noticed  that  if  a  provision  for 
the  "  widow "  of  the  beneficiary  of  an  express  trust 
constitutes  not  a  trust  for  her  benefit,  but  an  absolute 
gift  to  take  effect  in  possession  upon  the  husband's 
death,  it  is  no  objection  to  its  validity  that  she  might 
be  a  person  not  in  being  at  the  creation  of  the  estate.6 

The  Additional  Term  of  Minority. 

§  86.  Section  42  of  the  Real  Property  Law,  after  de- 
fining suspension  of  the  absolute  power  of  alienation, 
and  declaring  void  such  future  estates  as  shall  suspend 


1  See  Meeker  v.  Draffen,  201  N.  Y.  205. 

2  Schettler  v.  Smith,  41  N.  Y.  at  330,  "2nd";  331  "3d";  335  et  seq. 
See  Stevens  v.  Miller,  2  Dem.  597. 

3  Schettler  v.  Smith,  41  N.  Y.  328,  338;  Van  Brunt  v.  Van  Brunt,  111 
N.  Y.  178.  184;  Meeker  v.  DralTen,  201  N.  Y.  205.  See  also  Davis  v.  Kerr. 
30  App.  Div.  322;  Allen  v.  Allen,  149  N.  Y.  280;  Gray,  Perpetuities.  Cud 
Ed.,  §  214;  Marsden,  Perpetuities,  103,  175. 

*  Van  Brunt  v.  Van  Brunt,  111  N.  Y.  178. 

5  Compare  Schermerliorn  v.  Cotting,  131  N.  Y.  48;  Van  Cott  v.  Prentice, 
104  N.  Y.  45,  56,  57. 

6  Durfee  v.  Pomeroy,  154  N.  Y.  583. 


52  GENERAL  PRINCIPLES.  [CH.  II. 

such  absolute  power  for  more  than  two  lives  in  being, 
adds,  by  way  of  exception,  "  that  a  contingent  remain- 
der in  fee  may  be  created  on  a  prior  remainder  in  fee, 
to  take  effect  in  the  event  that  the  persons  to  whom  the 
first  remainder  is  limited,  die  under  the  age  of  twenty- 
one  years,  or  on  any  other  contingency  by  which  the 
estate  of  such  persons  may  be  determined  before  they 
attain  full  age.  For  the  purposes  of  this  section,  a 
minority  is  deemed  a  part  of  a  life,  and  not  an  absolute 
term  equal  to  the  possible  duration  of  such  minority."  x 
This  statute  refers,  in  the  plural,  to  the  "  persons " 
to  whom  the  first  remainder  is  limited,  and  to 
the  determination  of  the  estate  of  "  such  persons  "  be- 
fore "  they  "  attain  full  age.  And  the  words  used  by 
the  original  Revisers,  in  their  Notes  to  the  section,  may 
possibly  suggest  that  the  statutory  provision  has  in 
some  way  a  wider  scope  than  if  it  were  explicitly  con- 
fined in  terms  to  the  case  of  one  devolution  only,  of  the 
class  specified.2 

§  87.  One  construction  that  has  been  suggested  is, 
that  the  statute  authorizes  successive  remainders  over, 
in  fee,  in  case  of  successive  terminations  of  prior  re- 
mainders during  minority;  or  successive  cross  remain- 
ders over  among  the  members  of  a  class,  in  case  of  the 
termination  of  individual  shares  during  minority,  with 
a  possible  ultimate  remainder  over  in  case  all  the  orig- 
inal shares  are  thus  terminated.  Another  is,  that  it 
authorizes  alternative  ultimate  remainders  in  fee,  one 


1  Real  Property  Law,  §  61,  relating  to  express  trusts  for  the  accumula- 
tion of  rents  and  profits,  also  bears  upon  the  subject  of  the  additional  term 
of  minority.  §  211.  As  to  express  trusts  for  the  application  of  rents  and 
profits,  see  §  222. 

,J  See  for  example  the  remarks  in  Forsyth  v.  Rathbone,  34  Barb.  388,  of 
the  court  below,  given  id.  p.  404;  Vail  v.  Vail,  7  Barb.  226,  and  4  Pai.  317, 
and  see  Fowler,  Real  Property  Law,  3rd  Ed.,  pp.  305-309,  for  a  valuable 
discussion  of  this  subject. 


§  89.]  THE  ADDITIONAL  TERM  OF  MINORITY.  53 

or  the  other  to  vest,  according  to  the  contingency,  in 
case  of  the  failure  of  the  prior  remainder  during  minor- 
ity. Another  suggests  the  view  that  only  one  ultimate 
remainder  can  be  provided  for  in  any  event.  On  these 
questions,  in  addition  to  the  terms  of  the  statute,  and 
the  form  of  the  Revisers'  Notes  already  mentioned,  the 
following  points  are  to  be  noticed. 

§  88.  So  far  as  concerns  provision  for  mere  alterna- 
tive ultimate  remainders,  one  or  the  other  of  which 
must  vest,  if  at  all,  at  the  majority,  or  earlier  death,  of 
the  first  taker  in  fee,  the  case  appears  to  be  fully  cov- 
ered by  §  51  of  the  Real  Property  Law,  and  is  in  no  way 
in  opposition  to  either  Rule  I,  relating  to  alienability, 
or  Rule  II,  relating  to  vesting,  for  whichever  remain- 
der takes  effect,  alienability  and  vesting  must  both  ex- 
ist by  the  end  of  the  period  clearly  authorized  by  stat- 
ute.1 As  to  a  series  of  remainders  in  fee,  vesting  dur- 
ing minority  and  successively  subject  to  divesting,  on 
like  contingencies,  it  appears  that  if  this  were  allow- 
able, then  either  the  possible  term  of  suspension  might 
validly  be  made  perpetual,  which  seems  wholly  incon- 
sistent with  every  feature  of  the  statutory  scheme;  or 
continuous  at  least  during  the  minority  of  all  the  in- 
fants in  being,  which  is  equally  inconsistent;  or  else, 
the  period  for  possible  successive  devolutions  must  be 
measured  by  what  would  have  been  the  minority  of 
the  first  infant  remainderman  in  the  series,  if  he  had 
lived  to  come  of  age,  a  view  which  is  apparently  op- 
posed to  the  theory  and  probable  intent  of  the  statute 
quoted.2 

§  80.  During  all  the  period  since  the  enactment  of 
the  Revised  Statutes,  it  seems  to  have  been  uniformly 

1  Fowler  v.  Depau,  26  Barb.  224. 

2  Jacoby  v.  Jacoby,  188  N.  Y.  124,  130. 


54  GENERAL  PRINCIPLES.  |CH.  n 

regarded  by  the  courts  1  as  settled,  that  the  period  ex- 
tending through  two  lives  and  until  the  majority  or 
earlier  death  of  one  infant,  furnished,  when  understood 
as  including  allowance  for  periods  of  gestation,  the 
extreme  maximum  of  the  authorized  term.2  And  §  50 
of  the  Real  Property  Law  provides  for  limiting  a  fee  or 
other  less  estate  on  a  fee,  on  a  contingency  which,  if  it 
should  occur,  must  happen  "  within  the  period  pre- 
scribed "  in  the  same  article ;  as  to  which,  it  may  be 
said  that  unless  the  reference  is  to  two  lives  and  in  cer- 
tain cases  during  one  actual  minority  or  until  earlier 
death  of  the  minor,  it  would  be  difficult  to  speak  of  it 
as  a  "  prescribed  period." 

§  90.  And  the  statute  in  question  itself  speaks  of  the 
remainder,  upon  the  termination  of  which  a  fee  may  be 
limited  over,  as  the  "  first "  remainder.  This  fact  was 
noticed  in  Temple  v.  Hawley,z  where  it  was  held  that  a 
clause  directing  a  further  and  second  contingent  limi- 
tation over,  of  a  given  interest,  on  the  death  under  age 
of  one  who  was  himself  to  take  on  the  death  of  a 
previous  infant  remainderman,  was  invalid,  and  the  As- 
sistant Vice  Chancellor  says,  that  the  statute  in  ques- 
tion "  requires  the  contingent  remainders  thereby 
authorized,  to  take  effect  in  the  event  that  the  persons 
to  whom  the  first  remainder  is  limited,  shall  die  under 
age  of  twenty-one  years,  etc.,"  and  that  "  it  does  not 
permit  the  creation  of  a  contingent  remainder  to  take 
effect  upon  the  death  of  the  one  who  takes  under  the 
prior  contingency,  from  the  person  to  whom  the  first 
remainder  is  limited."  To  the  same  effect  is  Lalor, 
Eeal  Property   (1855),  87.     The  use  of  the  plural,  in 


1  Except,  apparently,  in  Adams  v.  Berger,  18  N.  Y.  Supp.  33. 

2  Manice  v.  Manice,  43  N.  Y.  303,  375;  Matter  of  Bnichaeser,  49  Misc. 
194;  Jennings  v.  Jennings,  7N.  Y  547;  Temple  v.  Hawley,  1  Sandf.  Ch. 
153,  177;  Butler  v.  Butler,  3  Barb.  Ch.  304,  311. 

3  1  Sandf.  Ch.  153,  177. 


§  92.]  THE  ADDITIONAL  TERM  OF  MINORITY.  55 

the  statute  quoted,  is  no  doubt  to  be  understood  as  re- 
ferring to  the  fact  that  the  remainder  may  be  limited 
to  tenants  in  common,  in  shares,  each  share  to  be  judged 
on  its  own  merits.1  It  would  seem  quite  clear,  there- 
fore, that  in  the  exceptional  case  provided  for,  the  sus- 
pension, or  postponement  of  vesting,  can  in  no  event 
extend,  in  addition  to  two  designated  lives,  beyond  the 
majority,  or  earlier  death,  of  one  infant.  By  the  end 
of  two  designated  lives,  and  the  majority  or  earlier 
death  of  the  infant,  the  suspension  and  the  postpone- 
ment of  vesting  must  cease.2 

§  91.  The  terms  of  a  given  disposition  may  be  such 
as  to  apply  only  to  a  minor,  or  an  ultimate  remainder- 
man, in  being  at  the  creation  of  the  estate,  and  there  is 
special  recognition  of  one  such  class  of  cases  in  the 
statute  relating  to  accumulations.  But  except  as  thus 
provided  for  by  the  terms  or  nature  of  a  given  disposi- 
tion, it  is  not  essential  that  either  the  infant  remainder- 
man, or  the  ultimate  remainderman,  should  be  a  per- 
son in  being  at  the  creation  of  the  estate.  It  is  suffi- 
cient if  the  infant  is  in  being  at  or  prior  to  the  expira- 
tion of  two  designated  lives  in  being;  and  sufficient  if 
the  ultimate  remainderman  is  in  being  when  the  estate 
of  the  infant  ceases,  during  minority.3 

§  92.  Two  cases  sometimes  referred  to  in  connection 
with  this  subject,  should  be  briefly  considered.  In 
Post  v.  Hover,4  land  was  devised  in  fee  to  three  in- 


1  Infra,  §  104,  and  Post  v.  Hover,  33  N.  Y.  593.  Compare  Hawley  v. 
James,  16  Wend.  61,  123-4. 

2  Manice  v.  Manice,  43  N.  Y.  303,  375;  Radley  v.  Kuhn,  97  N.  Y.  26, 
35;  Matter  of  Howland,  75  App.  Div.  207,  211;  Woodgate  v.  Fleet,  64 
N.  Y.  566,  572-3;  Greenland  v.  Waddell,  116  N.  Y.  234,  245;  Schlereth  v. 
Schlereth,  173  N.  Y.  444,  454;  Morton  v.  Morton,  8  Barb.  18;  Monypeny 
v.  Monypeny,  131  App.  Div.  269;  136  App.  Div.  677;  202  N.  Y.  90. 

8  Manice  v.  Manice,  43  N.  Y.  303,  374. 
4  33  N.  Y.  593. 


56  GENERAL  PRINCIPLES.  [CH.  II. 

fants,  A,  B  and  C,  as  tenants  in  common,  subject  as  to 
each  share,  in  case  of  the  death  of  the  respective  infant 
during  minority,  without  issue,  to  devolution  over  upon 
a  like  qualified  fee,  to  the  survivors  or  survivor,  and  in 
case  of  the  death  of  all  during  minority,  without  issue, 
then  over  in  fee  to  D.  Assuming  all  the  infants  to  die 
under  age,  without  issue,  and  taking  for  consideration 
the  share  of  A,  as  the  first  to  die,  it  will  be  seen  that  on 
his  death  his  share  would  pass  in  equal  sub-shares  to  B 
and  C;  and  that  at  the  death  of  B,  the  second  to  die, 
his  sub-share  (as  well  as  his  own  full  share)  would  pass 
to  C,  subject  to  possible  like  defeat  in  favor  of  D.  Now 
there  was  no  trust,  and  all  possible  takers  were  in 
being.  Accordingly  there  was  no  suspension  of  alien- 
ability under  Rule  I.  D's  remainder,  however,  could 
not  vest,  if  ever,  until  the  death  of  three  persons,  thus 
raising  the  question  of  compliance  with  Rule  II  (Chap- 
ter VI ) .  But  the  lives  of  the  two  first  to  die  would  be 
"  two  lives  in  being,"  and  that  of  the  third  would  be  a 
further  minority.  The  court  do  not  consider  the  stand- 
ing of  D's  remainder,  but  the  question  of  its  validity 
would  seem  to  depend  on  the  applicability  of  the  statute 
in  question.1 

§  93.  In  Beardsley  v.  Hotclikiss?  there  was  a  grant 
in  trust  for  one  life,  followed  by  a  devise,  in  execution 
of  a  reserved  power,  by  which  the  property  was  given 
in  equal  shares  to  five  infants,  subject  to  devolution, 
if  either  died  during  minority  without  issue,  to  the 
survivors,  but  after  the  life  estate  there  was  no  sus- 
pension of  the  power  of  alienation,  because  the  only  un- 
certainty was  as  to  which  of  the  five  infants,  all  in  be- 
ing, would  become  absolutely  vested  at  last,  and  so  by 

1  See  Mott  v.  Ackerman,  92  N.  Y.  539,  549;  Matter  of  Howland,  75  App. 
Div.  207,  210;  Everitt  v.  Everitt,  29  K  Y.  39;  Matter  of  Conger,  81  App. 
Div.  493,  500-504. 

2  96  N.  Y.  201. 


§  95.]     THE  STATUTORY  REQUIREMENT  IS  IMPERATIVE      57 

uniting  they  could  have  conveyed  an  absolute  fee.1 
Each  share,  however,  still  continued  contingent,  but 
only  for  one  further  life  as  to  each.  "  Upon  the  death 
of  any  child  without  living  issue,  the  share  of  such 
child  was  given  absolutely  to  the  survivors,  and  vested 
absolutely  in  them,  free  from  any  other  contingencies. 
Such  is  the  plain  language  of  the  will." 2  Thus  the 
case,  though  sometimes  cited  in  connection  with  the 
subject  of  additional  suspension  or  postponement  after 
two  lives,  has  no  bearing  on  it.  As  to  any  given  share, 
the  maximum  possible  suspension  was  one  life,  and  the 
maximum  possible  postponement  of  absolute  vesting 
two  lives,  from  the  delivery  of  the  original  grant. 

The  Statutory  Requirement  is  Imperative. 

§  94.  To  be  valid,  the  term  of  a-  suspension  of  the 
power  of  alienation  must  be  so  limited  that  in  every 
possible  contingency  it  must  end  within  the  period  pre- 
scribed by  the  statute.  It  is  not  enough  that  the  sus- 
pension may  terminate  by  the  end  of  two  lives.  The 
instrument  must  be  drawn  so  that  the  suspension  in- 
evitably must  so  terminate.3 

§  95.  The  validity  of  a  scheme  involving  suspension 
of  the  power  of  alienation  depends  not  at  all  upon  what 


1  Id.  p.  214-215. 

■  Id.  p.  213. 

3  Matter  of  Mount,  185  N.  Y.  162,  169;  Matter  of  Wilcox,  194  N.  Y. 
288,  295;  Schettler  v.  Smith,  41  N.  Y.  328,  334;  352;  Herzog  v.  Title 
Guaranty  and  Trust  Co.,  177  N.  Y.  86;  Simpson  v.  Trust  Co.  of  America. 
129  App.  Div.  200,  aff'd  197  N.  Y.  586;  Henderson  v.  Henderson,  113 
N.  Y.  1.  14,  15;  Knox  v.  Jones,  47  N.  Y.  389,  397;  Brown  v.  Evans,  34 
Barb.  594;  Gott  v.  Cook,  7  Pai.  521;  Haynes  v.  Sherman,  117  N.  Y.  433, 
437;  Thompson  v.  Carmichael's  Ex'rs,  1  Sandf.  Ch.  387;  Matter  of  Russell. 
5  Dem.  388;  Broughton  v.  Jones,  1  Colby  Ch.  R.  26;  Hawley  v.  James. 
16  Wend.  61,  120,  178;  Craig  v.  Hone,  2  Edw.  Ch.  554,  561;  Shotwell  v. 
Mott,  2  Sandf.  Ch.  46;  McSorley  v.  Wilson,  4  Sandf.  Ch.  515;  Tayloe  v. 
Gould, 10  Barb.  388;  Hannan  v.  Osborn,  4  Pai.  336,  342;  Knox  v.  Jones,  47 
N.  Y.  389,  397 ;  DeBarante  v.  Gott,  6  Barb.  492,  502. 


58  GENERAL  PRINCIPLES.  [CH.  II. 

does  in  fact  happen,  subsequent  to  the  date  when  the 
instrument  takes  effect.  It  depends,  on  the  contrary, 
entirely  on  what  might  happen  under  the  provisions  of 
the  instrument  viewed  from  the  date  when  it  took  effect, 
to  extend  the  suspension  beyond  the  statutory  period.1 
The  rule  on  this  point  is  sometimes  stated  thus :  Where 
by  the  terms  of  the  instrument  creating  an  estate,  speak- 
ing as  of  the  date  when  it  takes  effect,  there  might  be 
an  unlawful  suspension  of  the  power  of  alienation, 
the  limitation  which  might  effect  that  result  is  void, 
although  it  turns  out  by  a  subsequent  event,  as  by  the 
falling  in  of  a  life,  that  no  actual  suspension  beyond 
the  statutory  period,  has  taken  place.  But  it  always  is 
to  be  borne  in  mind  that  the  suspension  to  which  these 
propositions  relate,  is  a  suspension  of  the  absolute 
power  to  alienate,  .and  not  a  mere  failure,  or  chance 
that  there  may  be  a  failure,  to  actually  alienate  in  fact.2 

Subordinate  Measures  of  the  "  Period,"  When  Permitted. 

§  96.  Although  a  term  of  suspension  must,  to  be 
valid,  be  measured  by  a  life  or  two  lives  in  being  and, 
in  the  exceptional  case  provided  for  in  Real  Property 
Law  §  42,  a  further  minority,  yet  there  is  no  objection 
to  also  employing  some  other  measure,  as  for  example 
a  term  of  years,  if  it  cannot  extend  the  period  beyond 
the  designated  lives.3    And  so,  even  though  the  instru- 


1  Matter  of  Wilcox,  194  N.  Y.  288,  295;  Simpson  v.  Trust  Co.  of  America, 
129  App.  Div.  200,  affd  197  K  Y.  586;  see  also  cases  cited  in  following 
sections,  and  in  Chapter  X. 

s  See  for  the  bearing  of  this  principle  on  (a)  a  power  so  framed  in  general 
terms  that  the  grantee  might,  without  departing  from  its  mere  form, 
attempt  an  illegal  exercise  of  it,  §  278 ;  (b)  cases  where  the  vice  affects 
only  an  unidentified  share,  Chapter  X ;  (c)  cases  of  separate  future  dispo- 
sitions, one  valid  and  the  other  void,  Chapter  X.  Also  the  following 
sections. 

3  Montignani  v.  Blade,  145  N.  Y.  Ill ;  Schermerhorn  v.  Cotting,  131 
N.  Y.  48;  Kernochan  v.  Marshall,  165  N.  Y.  472;  Meldon  v.  Devlin.  31 
App.  Div.  146,  and  167  N.  Y.  573;  Levy  v.  Hart,  54  Barb.  248;  Kahn  v. 


§  96.]  SUBORDINATE  MEASURES  OF  THE  "PERIOD."     59 

ment  does  adopt  some  measure  of  the  term  other  than 
"  two  lives  in  being  "  such  as  may  be  found  illustrated 
in  §  75,  yet  any  such  measure  is  unobjectionable,  if  only 
there  is  also  a  controlling  provision  that  in  any  event 
the  trust  must  terminate  within  one  or  two  designated 
lives.  A  trust  to  continue  during  the  "  joint  lives  "  of 
three  persons,  is  valid,  when  the  term  "  joint "  implies 
that  it  is  only  to  last  while  all  three  are  living,  as  it 
must  terminate  upon  the  death  of  that  one  of  the  three 
who  dies  first.1  Where  a  trust  is  created  to  continue 
through  the  lives  of  A  and  B,  their  death  brings  the 
term  to  an  end.  And  this  term  need  not  be  for  the 
whole  of  two  lives.  It  may  be  expressly  provided  that 
the  term  is  to  continue  until  the  happening  of  some 
collateral  contingency  which  must  happen  within  the 
statutory  period,  if  ever.2  And  the  grantor  may  re- 
serve the  power  to  revoke  the  trust.3  Or  he  may  pro- 
vide for  its  termination  in  case  of  any  "  interference  " 
by  the  beneficiary  with  the  trust  provisions ; 4  or  at  the 
discretion  of  the  trustee  on  the  happening  of  certain 


Tierney,  135  App.  Div.  897,  affirmed  201  N.  Y.  516  ;  DeKay  v. 
IrviDg,  5  Den.  646,  653;  Hunter  v.  Hunter,  17  Barb.  25,  90;  Phelps' 
Executor  v.  Pond,  23  N.  Y.  69  ;  Oxley  v.  Lane,  35  N.  Y.  340,  345,  357  ; 
Provost  v.  Provost,  70  N.  Y.  141  ;  McCosker  v.  Brady,  1  Barb.  Ch.  329, 
342;  Keenan  v.  Keenan,  122  App.  Div.  435;  DePeyster  v.  Beekman,  55 
How.  Pr.  90;  Simpson  v.  Cook,  24  Minn.  180,  184-5;  Franklin  v.  Minertz- 
hagen,  39  App.  Div.  555;  Tball  v.  Dreyfus,  84  App.  Div.  569.  See  also 
Orange  County  Trust  Co.  v.  Morrison,  56  Misc.  88;  Nester  v.  Nester,  68 
Misc.  207;  Dexter  v.  Watson,  54  Misc.  484;  Clark  v.  Goodridge,  51  Misc. 
140;  Matter  of  Perry,  48  Misc.  285;  Liebmann  v.  Liebmann,  53  Misc.  488; 
Kirk  v.  Kirk,  12  N.  Y.  Supp.  326;  137  N.  Y.  510;  Wright  v.  Mayer,  47 
App.  Div.  604. 

'Meldon  v.  Devlin,  31  App.  Div.  146;  167  N.  Y.  573. 

5  Van  Cott  v.  Prentice,  104  K  Y.  45,  52;  Montignani  v.  Blade,  145 
N.  Y.  Ill;  Crooke  v.  County  of  Kings,  97  N.  Y.  421. 

3  Van  Cott  v.  Prentice,  104  N.  Y.  45,  52.  54-5  (cf.  Garnsey  v.  Mundy. 
24  N.  J.  Eq.  243;  Conkliug  v.  Davies,  14  Abb.  N.  C.  499);  Rosenburg  v. 
Rosenburg,  40  Hun,  91,  where  the  property  was  personal ;  see  Matter  of 
Vanderbilt,  20  Hun,  520. 

*  Van  Cott  v.  Prentice,  104  N.  Y.  45,  52;  see  Woodward  v.  James,  44 
Hun,  95;  115  N.  Y.  346. 


60  GENERAL  PRINCIPLES.  [CH.  II. 

contingencies.1     And  failure  of  an  essential  feature  of 
an  entire  trust  scheme  destroys  the  whole.2 

§  97.  And  a  suspension  may  be  validly  created  which 
may  perhaps  continue  through  more  than  two  desig- 
nated lives,  if  only  it  be  provided  that  it  must  in  any 
event  cease  at  the  end  of  two  specified  lives.  Such  a 
provision  is  discussed  at  length,  although  not  in  issue, 
in  Bailey  v.  Bailey?  In  that  case  the  testator  created 
a  trust  for  a  number  of  relatives,  the  term  to  be  meas- 
ured by  the  lives  of  two  strangers,  Thomas  and  Web- 
ster. He  also  gave  to  his  wife  a  life  interest  in  a  house 
not  covered  by  the  trust,  and  provided  that  upon  her 
death  it  should  become  a  part  of  the  property  held  in 
trust,  and  be  disposed  of  in  the  same  way.  Here  no 
suspension  was  possible  beyond  the  two  lives  of  Thomas 
and  Webster.  For  if  at  the  end  of  their  lives  the  widow 
were  already  dead,  the  entire  property,  including  the 
house,  would  at  their  death,  be  released  from  the  sus- 
pension. And  if,  on  the  other  hand,  at  the  end  of  their 
lives,  the  widow  were  still  living,  then  (as  it  would  be 
thenceforth  impossible  that  the  house  should  ever  be 
diverted  into  the  general  trust  fund),  the  remainder 
would  vest  absolutely  in  the  remaindermen,  and  they 
and  the  widow  would  among  them  hold  the  entire  fee 
with  power  to  convey  absolutely.4 


1  Marvin  v.  Smith,  56  Barb.  600,  605,  aff'd  46  N.  Y.  571  (cf.  provisions 
of  will  in  Matter  of  City  of  Rochester,  110  N.  Y.  159,  160). 

2  Chapter  X. 

3  97  N.  Y.  460. 

4  Also  Corse  v.  Chapman,  153  N.  Y.  466,  473;  Bird  v.  Pickford,  141 
N.  Y.  18;  Schermerhorn  v.  Cotting,  131  K  Y.  48;  Montignani  v.  Blade, 
145  N.  Y.  Ill;  Kernochan  v.  Marshall,  165  N.  Y.  472;  Frazer  v.  Hoguet, 
65  App.  Div.  192 ;  Matter  of  Hurlbut,  51  Misc.  263 ;  Kessler  v.  Friede,  29 
Misc.  187;  Finch  v.  "Wilkes,  17  Misc.  428;  Emmons  v.  Cairns,  3  Barb. 
243;  see  also  Levi  v.  Scheel,  124  App.  Div.  613.  City  of  Brooklyn  v. 
Seaman,  30  Misc.  507,  is  contra,  and  erroneous.  And  so,  in  so  far  as  con 
cerns  this  point,  is  Moore  v.  Moore,  47  Barb.  257,  which  is  incorrectly 


§  99.]     SUBORDINATE  MEASURES  OF  THE  "  PERIOD."  61 

§  98.  But  in  another  case,  Phelps'  Executor  v.  Pond,1 
where  the  provisions  were  in  many  respects  very  simi- 
lar to  those  in  Bailey  v.  Bailey?  the  application  of  the 
same  principles  necessarily  led  to  a  decision  that  the 
term  was  invalid.  In  that  case,  two  trusts  were  created. 
The  term  of  one,  which  we  will  speak  of  as  the  "  first ': 
term,  was  measured  by  two  designated  lives,  A  and  B,  or 
the  earlier  lapse  of  ten  years.  The  term  of  the  other, 
which  may  be  spoken  of  as  the  "  second  "  term,  was 
measured  by  the  life  of  C,  the  beneficiary,  and  if  she  died 
during  the  continuance  of  the  "  first  "  term,  her  fund  was 
to  fall  into  the  first  trust  fund  and  continue  suspended 
throughout  the  first  term.  But  if  C  died  after  the  end 
of  the  first  term,  the  trust  for  her  was  to  continue,  and 
upon  her  death  the  fund  was  to  be  at  once  distributed. 
It  will  be  noticed  that  the  "  second  "  term  is  not  meas- 
ured solely  by  C's  life,  for  after  C's  death  it  is  still  to 
run  on  till  the  death  of  A  and  B  or  the  earlier  lapse  of 
ten  years.  Nor  is  it  measured  solely  by  the  life  of  A 
and  B  or  the  earlier  lapse  of  ten  years,  for  after  the 
end  of  that  term,  it  is  still  to  run  on  through  the  life 
of  C,  if  still  living.  In  the  Phelps  case,  therefore,  the 
suspension,  for  lack  of  being  certainly  bounded  by  two 
lives,  was  held  void.3 

§  99.  And  here  should  be  mentioned,  for  the  purpose 
of  stating  one  of  the  things  it  does  not  cover  or  refer 
to,  the  principle  elsewhere  discussed,  that  a  scheme  of 
disposition  is  invalid  under  Rule  I,  Alienability,  if  a 
resulting  suspension  of  the  power  of  alienation   may 


said,  in  6  Alb.  L.  J.  257,  to  have  been  affirmed ;  for  the  three  year  term 
there  mentioned,  would  necessarily  have  ended  with  the  earlier  death  of  a 
designated  person. 

1 23  N.  Y.  69,  79. 

9  97  N.  Y.  460. 

8  Also  Walsh  v.  Waldron,  63  Hun,  315,  aff'd  135  N.  Y.  650  :  Brown  v. 
Quintard,  177  N  Y.  75;  Finch  v.  Wilkes.  17  Misc.  428. 


62  GENERAL  PRINCIPLES.  [CH.  II. 

possibly  continue  beyond  two  lives  in  being.  It  is  some- 
times referred  to  as  if  the  mere  fact  that  a  fixed  period 
of  time  might  elapse,  or  more  than  two  persons  might 
die,  during  the  term  in  question,  necessarily  renders  it 
invalid.  Thus  (without  criticising  the  net  result)  in  so 
recent  a  case  as  Matter  of  Phillips,1  the  remarks  of  the 
court  will  serve  to  illustrate  the  point  now  under  con- 
sideration; and  so  with  City  of  Brooklyn  v.  Seaman? 
and  Moore  v.  Moore,3  above  referred  to.  As  shown  by 
the  large  number  of  authoritative  cases  cited  above,  such 
a  statement  of  the  law  cannot  be  supported.  If  it  were 
true,  very  few  trusts,  if  any,  of  the  classes  which  occa- 
sion suspension,  could  stand ;  for  in  any  trust  term  duly 
measured  by  lives,  it  is  always  true  that  a  fixed  space 
of  time,  say  of  five  years,  may  expire,  or  that  more 
lives  than  two  may  end,  before  the  term  of  suspension 
runs  out.  But  in  fact  such  a  possibility  is  immaterial 
if  there  are  two  lives  in  being  beyond  which,  in  any 
event,  the  suspension  cannot  extend.4 

Alternative  "  Lives,"  When  Permitted. 

§  100.  And  not  only  does  the  fact  that  a  term  is 
strictly  measured  by  two  lives,  allow  the  creator  of  the 
suspension  to  employ,  within  the  limit  of  those  lives, 
any  other  subordinate  measure  whatever,  but  it  also 


1  56  Misc.  96. 

2  30  Misc.  507. 

3  47  Barb.  257. 

4  As  a  matter  of  construction  of  a  given  instrument,  it  has  been  held, 
where  the  term  was  created  to  continue  until  the  end  of  a  specified  space 
of  time  or  until  the  death  of  two  designated  persons,  that  the  intent  was 
as  if  the  instrument  had  proceeded  to  say  "  whichever  of  said  events  shall 
first  occur,"  and  thus  construed,  the  scheme  was  valid.  Clark  v.  Good- 
ridge.  51  Misc.  140.  And  a  trust  to  pay  income  to  A  "until  the  age  of  fifty 
(in  1904),"  may  mean  that  the  date,  1904,  is  merely  added  to  show  when 
the  trust  will  end  if  A  lives  so  long,  and  not  to  mean  that  it  must  last  till 
1904  even  if  he  dies  earlier.     Olcott  v.  Ossowski,  34  Misc.  376. 


§  101.]  SUCCESSIVE  SUSPENSIONS.  63 

allows  bim  to   provide  within   those  same  limits  for 
alternative  schemes  of  measurement.1 


Successive  Suspensions  under  Independent  Instruments. 

§  101.  The  fact  that  an  owner  of  property  must  con- 
fine the  period  of  suspension  effected  by  a  grant  or  de- 
vise, within  the  limits  of  the  "  statutory  period/'  does 
not  impair  the  right  of  the  owner  of  a  remainder  there 
created,  or  of  a  reversion  there  reserved,  to  subject  his 
remainder  or  reversion  to  a  separate  suspension  for 
a  different  or  additional  "  statutory  period.''  Thus  if 
the  original  owner  creates  an  express  trust  which  sus- 
pends the  power  of  alienation  for  two  lives  in  being, 
retaining  the  reversion,  he  may  subsequently,  and  as  a 
separate  transaction,  dispose  of  the  reversion  upon  a 
like  express  trust  for  twTo  other  lives  in  being.2  And  so 
the  owner  of  a  remainder  limited  on  a  trust  for  two 
lives,  may  grant  or  devise  that  remainder,  in  trust,  for 
two  other  lives  in  being.3  But  if  the  second  limitation 
is  created  merely  by  the  exercise  of  a  power  of  appoint- 
ment derived  from  the  first  instrument,  then  the  maxi- 
mum term  of  suspension  under  the  two  instruments 
taken  together  cannot  exceed  one  "  statutory  period  " 
computed  from  the  going  into  effect  of  the  first.4 


'Matter  of  Hart,  61  App.  Div.  587,  aff'd  168  N.  Y.  640;  Matter  of 
Durand,  194  N.  Y.  477,  485;  Genet  v.  Hunt,  113  N.  Y.  158;  Schermerhorn 
v.  Cotting,  131  N.  Y.  48;  Van  Cott  v.  Prentice,  104  N.  Y.  45,  56,  57.  Al- 
ternatives, one  valid  and  one  void.  Schettler  v.  Smith,  41  N.  Y.  328,  335, 
et  seq. ;  Matter  of  Wilcox,  194  N.  Y.  288.     Chapter  X. 

2N.  Y.  Life  Ins.  &  Trust  Co.  v.  Cary,  191  K  Y.  33 ;  Genet  v.  Hunt,  113 
N.  Y.  158,  168:  Farmers'  Loan  &  Trust  Co.  v.  Bostwick,  190  N.  Y.  569, 
reversing  120  App.  Div.  271. 

3  Livingston  v.  N.  Y.  Life  Ins.  &  Trust  Co.,  13  N.  Y.  Supp.  105,  36 
N.  Y.  State  Rep.  566,  aff'd  as  McCurdy  v.  N.  Y.  L.  I.  &  T.  Co.,  151  N.  Y. 
667.     See  U.  S.  Trust  Co.  v.  Chauncey,  32  Misc.  358. 

♦Genet  v.  Hunt,  113  N.  Y.  158,  170;  infra  §  294;  Farmers'  Loan  & 
Trust  Co.  v.  Kip,  192  N.  Y.  266;  Matter  of  Dows,  167  N.  Y.  227,  231. 


64  GENERAL  PRINCIPLES.  [CH.  II. 

Separate  "  Statutory  Periods  "  for  Separate  Shares. 

§  102.  Although  the  owner  of  property  cannot  sus- 
pend the  alienability  of  any  part  of  it  beyond  the  statu- 
tory period  of  two  lives  in  being  and  in  certain  cases  a 
further  minority,  yet  he  is  at  liberty  to  dispose  of  sepa- 
rate parcels,  shares,  or  interests,  and  to  subject  each  to 
its  own  separate  statutory  period  of  suspension.  For 
no  particular  parcel  or  share  is  thus  tied  up  for  more 
than  its  respective  lawful  term.  This  proposition  ap- 
plies not  only  to  cases  where  the  legal  title  to  each  par- 
cel or  share  is  separately  disposed  of,  but  also  to  cases 
where  the  legal  title  to  all  the  property  in  question  is 
vested  in  the  same  trustee,  and  the  beneficial  interests 
thus  provided  for  are  separate  and  distinct,  each  being 
subjected  to  its  own  independent  term  of  suspension ; l 
and  not  only  to  a  primary  division  into  principal 
shares,  but  also  to  a  division,  to  be  effected  later,  into 
sub-shares.2  Such  a  division  and  sub-division  of  bene- 
ficial interests  is  illustrated  in  the  following  diagram, 
showing  nine  main  shares,  and  the  division  of  two  of 


1  Vanderpoel  v.  Loew,  112  N.  Y.  167,  181 ;  Wells  v. Wells,  88  N.  Y.  323, 
324  VI,  333;  Matter  of  Mount,  185  N.  Y.  162;  Monson  v.  N.  Y.  S.  &  T. 
Co.,  140  N.  Y.498;  Corse  v.  Chapman,  153  N.  Y.  466;  Savage  v.  Burnham, 
17  N.  Y.  561;  Schermerhorn  v.  Cotting,  131  N.  Y.  48;  Palms  v.  Palms,  68 
Mich.  355;  Hardenbergh  v.  McCarthy,  130  App.  Div.  538;  Everitt  v. 
Everitt,  29  N.  Y.  39;  Bingham  v.  Jones,  25  Hun,  6;  Phillips  v.  Davies, 
92  N.  Y.  199;  Bruner  v.  Meigs,  64  N.  Y.  506;  Mullarky  v.  Sullivan,  136 
N.  Y.  227,  229;  Trolan  v.  Rogers,  79  Hun,  507;  Thorn  v.  Coles.  3  Edw. 
Ch.  330,  333-4.  See  also  Nichols  v.  Nichols,  42  Misc.  381 ;  McGregor  v. 
McGregor,  22  N.  Y.  Week.  Dig.  305;  Matter  of  Hoffman,  140  App.  Div. 
122,  aff'd  201  N.  Y.  247;  Pryer  v.  Pryer,  126  N.  Y.  Supp.  393;  Fisher 
v.  Langlotz,  100  N.  Y.  Supp.  578;  Bascom  v.  Weed,  53  Misc.  496;  Matter 
of  Bensel,  70  Misc.  279,  in  which  latter  case,  however  (irrespective  of  the 
merits  of  the  construction  given  to  the  language  there  in  question),  the 
citation  of  Ward  v.  Ward,  23  Weekly  Dig.  466,  in  support  thereof  ap- 
pears to  be  erroneous,  for  see  Ward  v.  Ward,  105  N.  Y.  68. 

2  Monson  v.  N.  Y.  S.  &  T.  Co.,  140  N.  Y.  498  ;  Moore  v.  Hegeman,  72 
N.  Y.  376,  as  to  which  see  Pray  v.  Hegeman,  92  N.  Y.  508  and  98  N.  Y. 
351 ;  see  also  Matter  of  Buchner,  60  Misc.  287. 


§  104.] 


SEPARATE  "STATUTORY  PERIODS." 


65 


them  into  three  sub-shares  each,  and  one  of  them  into 
four  sub-shares. 


A 


B 


i 

T3T 


1 
TT 


D 

2 

TT 


E 


i 

TT 


P 


TV 


o 

A 


H 

tV 


I 

TT 


3 


3 
35 


1 
85 


1 

as 


3  3  3  3 

55     55     65     55 


§  103.  From  this  it  appears  that  the  share  consisting 
of  3-14,  and  held  in  trust  for  A  for  his  life,  is  at  his 
death  to  be  subdivided  into  three  sub-shares  to  be  held 
in  trust  each  for  the  life  of  a  separate  person.  These 
sub-shares  consist  respectively  of  3-28,  3-56  and  3-56. 
The  original  interests  of  D  and  of  G,  are  also  on  their 
respective  deaths  to  be  subdivided  in  the  same  manner. 
Taking  the  sub-share  of  3-28,  as  an  instance,  we  see  that 
is  inalienable  first  during  the  life  of  A.  Then  it  is  fur- 
ther held  in  trust  during  the  life  of  one  other  person. 
That  makes  up  two  lives.  Then  it  is  freed  from  the 
trusts  and  vests.  The  same  is  true  of  each  of  the 
other  sub-shares.  The  further  fact  that  A,  for  ex- 
ample, and  the  three  beneficiaries  of  the  corresponding 
three  sub-shares,  might  all  die  before  any  of  the  other 
beneficiaries,  and  that  thus  all  the  rest  of  the  property, 
namely  11-14,  might  remain  inalienable  during  the  lives 
of  those  four  persons,  is  immaterial,  because  their  lives 
were  not  designated  as  measures  of  the  terms  appli- 
cable to  the  11-14  or  any  part  thereof.  Each  of  the  six 
shares  not  subdivided,  could  only  be  inalienable  during 
the  one  designated  life  by  which  its  term  was  measured, 
and  each  of  the  ten  sub-shares  could  only  be  inalienable 
during  the  one  original  and  one  secondary  life  by  which 
its  term  was  measured. 

§  104.  As  each  share  exhausts  the  two  lives  designated 
to  measure  it,  it  must  immediately,  if  the  scheme  is  valid, 


66  GENERAL  PRINCIPLES.  [CH.  II. 

become  freed  from  the  suspension,  and  vest  beneficially 
somewhere.  For  if  an  attempt  should  be  made  to  have 
a  share  held  in  trust  for  one  life,  and  then  divided  into 
parts  each  to  be  held  in  trust  for  a  separate  second  life, 
and  then  each  sub-share  to  be  still  further  held  in  trust 
after  the  expiration  of  its  second  life,  for  a  still  fur- 
ther term,  the  scheme  would  run  counter  to  the 
statute.1 

§  105.  To  describe  cases  where  each  share  has  its 
own  independent  period  of  duration,  the  term  "  tenancy 
in  common  "  is  often  employed,  by  way  of  analogy.  But 
if  there  is  only  one  period  for  all  the  shares,  and  the 
interests  of  those  who  die  continue  for  those  who  sur- 
vive, the  relationship  is  described  as  "  joint  tenancy." 
In  either  case  the  scheme  must,  to  be  valid,  satisfy  the 
same  test  as  to  duration;  but  evidently  a  disposition 
invalid  if  constituting  one  "  joint  tenancy,"  might  often 
be  valid  if  found  to  involve  separate  shares  with  inde- 
pendent terms.  In  such  cases,  the  pivotal  question  is 
the  inquiry  whether  the  intention  was  to  create  one 
term  of  suspension,  enveloping  all  the  interests,  and 
holding  them  in  its  grasp  throughout  the  entire  period ; 
or  whether  the  intention  was  to  constitute  distinct  and 
separate  interests,  each  to  be  measured  by  its  own  term 
and  having  its  own  separate  course  to  pursue.2 

§  106.  If  in  any  case  where  this  distinction  between 
joint  tenancy  and  tenancy  in  common,  as  among  the 
beneficiaries  of  an  express  trust,  would  thus  be  control- 
ling on  the  question  of  undue  suspension,  and  the  intent 
of  the  creator  of  the  trust,  either  one  way  or  the  other, 
is  sufficiently  shown,  the  courts  hold  the  trust,  as  he 
chose  to  make  it,  valid,  because  calling  for  separate 


!  Except  in  the  single  case  where  a  trust  may  continue  for  a  minority 
after  two  lives,  Manice  v.  Manice,  43  N.  Y.  303,  375,  et  seq. 
2  Finch,  J.,  in  Vanderpoel  v.  Loew,  112  N.  Y.  167,  177. 


§  107.]  SEPARATE  "STATUTORY  PERIOD."  67 

shares,  each  affected  by  a  separate  valid  term ; *  or  void, 
because  calling  for  one  estate  or  fund  affected  by  a  single 
illegal  term.2  And  this  is  true  whether  the  trust  is 
one  of  real  property,3  or  of  personal  property.4 

§  107.  In  order  to  be  valid  under  the  principles  just 
stated,  the  trusts  need  not  be  separately  framed;  if  the 
interests  of  the  beneficiaries  are  given  in  shares,  the 
separable  and  distinct  character  of  the  trust  provisions 
necessarily  results.5     All  that  is  requisite  is  that  the 


1  Stevenson  v.  Lesley,  70  K  Y.  512;  Savage  v.  Burnham,  17  N.  Y.  561, 
570;  Bulkley  v.  DePeyster,  26  Wend.  21;  Bingham  v.  Jones,  25  Hun,  6; 
Mason  v.  Jones,  2  Barb.  229,  242  ;  Everitt  v.  Everitt,  29  N.  Y.  39,  82; 
Shipman  v.  Rollins,  98  N.  Y.  311,  314,  330;  Corse  v.  Corse,  144  K  Y. 
569;  Maitland  v.  Baldwin,  70  Hun,  267;  Foote  v.  Bruggerhof,  66  Hun, 
406;  Matter  of  Truslow,  140  N  Y.  599;  Denison  v.  Denison,  185  K  Y.  438; 
Schermerhorn  v.  Cotting,  131  N.  Y.  48;  Matthews  v.  Studley,  17  App. 
Div.  303,  aff'd  161  N.  Y.  633;  Corse  v.  Chapman,  153  N.  Y.  466;  Matter 
of  Charlier,  22  App.  Div.  71 ;  Matter  of  Tompkins,  154  N.  Y.  634;  Matter 
of  Brown,  154  N.  Y.  313;  McLouth  v  Hunt,  154  N.  Y.  179;  Durfee  v. 
Pomeroy,  154  N.  Y.  533  ;  Campbell  v.  Stokes,  142  N.  Y.  23  ;  Allen  v. 
Allen,  149  N.  Y.  280  ;  Leach  v.  Godwin,  198  N.  Y.  35  ;  Wells  v.  Wells, 
88  N.  Y.  323;  Post  v.  Bruere,  127  App.  Div.  250. 

2  Knox  v.  Jones,  47  N.  Y.  389;  Ward  v.  Ward,  105  N.  Y.  68;  Colton  v. 
Fox,  6  Hun,  49,  and  67  N.  Y.  348;  Hone  v.  Van  Schaick,  20  Wend.  564; 
Van  Nostrand  v.  Moore,  52  N.  Y.  12,  22,  et  seq.  (consult  also  dissenting 
opinion  of  Wright,  J.,  in  Everitt  v.  Everitt,  29  N.  Y.  39,  97  ;  Thorn  v. 
Coles,  3  Edw.  Ch.  330)  ;  Central  Trust  Co.  v.  Egleston,  185  N.  Y.  23, 
29-34;  Matter  of  Trotter,  104  App.  Div.  188,  aff'd  182  N.  Y.  465;  Walsh 
v.  Waldron,  63  Hun,  315,  aff'd  135  N.  Y.  650  ;  Fowler  v.  Ingersoll,  127 
N.  Y.  472;  Brown  v.  Richter,  76  Hun,  469,  aff'd  144  N.  Y.  706;  Brown  v. 
Quintard,  177  N.  Y.  75,  82.     See  also  Mendel  v.  Levis,  40  Misc.  271. 

3  Ward  v.  Ward,  105  N.  Y.  68;  Colton  v.  Fox,  6  Hun,  49,  and  67  N.  Y. 
348;  Stevenson  v.  Lesley,  70  N.  Y.  512. 

4  Knox  v.  Jones,  47  N.  Y.  389;  Matter  of  Lapham,  37  N.  Y.  15;  Everitt 
v.  Everitt,  29  N.  Y.  39,  71  ;  Savage  v.  Burnham,  17  N.  Y.  561,  570  ; 
Bulkley  v.  DePeyster,  26  Wend.  21. 

6  Stevenson  v.  Lesley,  70  N.  Y.  512,  516;  Van  Brunt  v.  Van  Brunt,  111 
N.  Y.  178;  and  see  Bingham  v.  Jones,  25  Hun,  6  ;  Bevan  v.  Cooper,  72 
N.  Y.  317,  319  ;  Matter  of  Verplank,  91  N.  Y.  439,  443  ;  Wells  v.  Wells, 
88  N.  Y.  323,  333;  Savage  v.  Burnham,  17  N.  Y.  561,  570,  et  seq. ;  Mason 
v.  Mason's  Ex'rs.  2  Sandf.  Ch.  432  ;  Dickie  v.  Van  Vleck,  5  Redf.  284  ; 
Hunter  v.  Hunter,  31  Barb.  334,  338,  and  other  cases  above  cited. 


68  GENERAL  PRINCIPLES.  [CH.  II. 

intent  to  have  the  estate  contemplated  as  theoretically 
divided  into  separate  parcels  or  portions,  should  appear. 
Even  this  much  need  not  be  explicitly  expressed.1  In- 
deed, a  provision  that  the  entire  property  shall  remain 
actually  undivided  until  final  distribution,  except  as  por- 
tions from  time  to  time  should  drop  out  of  the  general 
estate  and  vest,  is  not  inconsistent  with  a  separation  of 
the  interests  of  the  beneficiaries,  in  contemplation.2 

§  108.  And  on  the  other  hand,  the  mere  fact  that  the 
trust  scheme  is  found  in  a  direction  to  pay  different 
portions  of  income  to  different  beneficiaries  for  differ- 
ent periods,  does  not  necessarily  render  it  valid,  for  the 
intent  may  nevertheless  be  to  have  only  one  indivisible 
trust,  rendering  all  the  property  inalienable  during  a 
period  not  duly  measured.3 

§  109.  Thus  far,  we  have  confined  ourselves  to  the 
distinction  between  joint  tenancy  and  tenancy  in  com- 
mon, either  literally  or  as  those  terms  are  employed 
with  reference  to  beneficial  interests  under  express 
trusts.  But  it  is  now  to  be  further  noticed  that  even  if 
the  estates  or  interests  in  question  are  in  a  given  case 
to  be  regarded  as  held  in  common,  or  in  severalty,  a 


1  Vanderpoel  v.  Loew,  112  N.  Y.  167,  177;  Matter  of  Verplank,  91  N.  Y. 
439,  443;  Wells  v.  Wells,  88  N.  Y.  323,  333  ;  Stevenson  v.  Lesley,  70 
N.  Y.  512;  Savage  v.  Burnham,  17  N.  Y.  561,  570,  et  seq.  ;  Surdam  v. 
Cornell,  116  N.  Y.  305;  Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  144.  See 
Colton  v.  Fox,  67  N.  Y.  348,  and  Ward  v.  Ward,  105  N.  Y.  68,  as  ex- 
plained in  Schermerhorn  v.  Cotting,  131  Y.  N.  48,  61. 

2  Vanderpoel  v.  Loew,  112  N.  Y.  167,  177.  And  for  illustrations  of 
particular  provisions  and  phrases,  see  also  Van  Brunt  v.  Van  Brunt,  111 
N.  Y.  178,  183;  Gage  v.  Gage,  43  Hun,  501;  112  N.  Y.  667;  Everitt  v. 
Everitt,  29  N.  Y.  39,  73.  et  seq. ;  Mason  v.  Mason's  Executors,  2  Sandf. 
Cb.  432 ;  Colton  v  Fox,  6  Hun,  49,  67  N.  Y.  348  ;  Van  Schuy ver  v. 
Mulford,  59  N.  Y.  426,  433;  Leavitt  v.  Wolcott,  63  How.  Pr.  51,  and  95 
N.  Y.  212;  Smith  v.  Edwards,  88  N.  Y.  92,  103,  and  cases  cited,  supra; 
Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  144. 

3  Matter  of  Trotter,  104  App.  Div.  188,  aff'd  182  N.  Y.  465. 


§  110.]  SEPARATE  "STATUTORY  PERIODS."  69 

situation  similar  to  that  occasioned  by  joint  tenancy 
may  nevertheless  arise  out  of  the  existence  of  so-called 
cross  remainders.  For  if  the  expressed  purpose  is  to 
have  each  share,  upon  the  death  of  a  beneficiary,  suc- 
cessively divided,  and  subdivided,  and  resubdivided,  and 
constantly  added  on  to  and  merged  in  the  remaining 
shares  as  long  as  any  of  the  beneficiaries  live,  the  net 
result  would  be  the  same,  in  relation  to  suspension,  as 
if  the  interests  of  the  beneficiaries  were  regarded  as 
joint,  and  if  more  than  two  lives  are  involved,  the  scheme 
of  suspension,  to  continue  during  more  than  two  lives, 
would  be  void,  in  whole  or  in  part,  according  to  the 
circumstances.1 

§  110.  But  even  where  it  is  clear  that  upon  the  death 
of  a  given  beneficiary,  his  share  is  to  be  divided,  and  the 
sub-shares  are  to  be  added  to  the  shares  of  the  surviving 
beneficiaries  and  still  held  in  the  grasp  of  the  trust,  yet 
in  the  absence  of  clear  indications  of  intent  it  will  not 
be  assumed  that  upon  the  death  of  a  second  beneficiary, 
the  sub-share  is  to  be  again  subdivided  along  with  his 
own  full  share,  and  held  in  trust  for  the  still  remaining 
survivors.  On  the  contrary,  and  in  aid  of  the  validity 
of  the  scheme,  it  will  be  presumed  that  the  direction  for 
subdivision  and  continuance  of  the  trust  applies  only 
to  each  original  share,  on  the  death  of  its  first  taker.2 
As  Finch,  J.,  expresses  it :  3  "  The  fraction  of  a  share 
which  has  been  twice  immersed  in  the  common  fund 
and  each  time  by  an  affirmative  and  specific  direction, 


1  Brown  v.  Richter,  76  Hun,  469,  affd  144  N.  Y.  706  ;  Simpson  v. 
Trust  Co.  of  America,  129  App.  Div.  200,  aff'd  197  N.  Y.  586;  Fowler  v. 
Ingersoll,  127  N.  Y.  472  ;  Duncklee  v.  Butler,  38  App.  Div.  99;  see  also 
Dana  v.  Murray,  122  N.  Y.  604,  615. 

5  Vanderpoel  v.  Loew,  112  N.  Y.  167,  183,  et  seq. ;  Everitt  v.  Everitt,  29 
N.  Y.  39,  85;  Corse  v.  Chapman,  153  N.  Y.  466,  473;  see  also  Oxley  v. 
Lane,  35  N.  Y.  340,  349 ;  Manice  v.  Manice,  43  N.  Y.  303. 

3  Vanderpoel  v.  Loew,  112  N.  Y.  167,  183,  et  seq. 


70  GENERAL  PRINCIPLES.  [CH.  II. 

is  not  to  be  drowned  in  it  a  third  time  upon  presump- 
tion, and  without  explicit  command,  and  to  the  utter 
destruction  of  the  entire  trust." 

§  111.  If,  as  not  infrequently  happens,  it  is  not  clear 
whether  the  grantor  or  testator  intended  to  create  a 
so-called  tenancy  in  common,  or  a  joint  tenancy  among 
beneficiaries,  the  first  resort,  in  solving  the  difficulty,  is 
to  the  statutory  presumption  in  favor  of  tenancy  in 
common.1  Although  this  statute  refers  to  real  property, 
it  has  gradually 2  become  settled,  and  is  now  established 
law,  that  by  virtue  of  §  11  of  the  Personal  Property 
Law  it  likewise  applies  to  future  interests  in  personal 
property,  and  also,  by  way  of  analogy,  to  present  in- 
terests as  well,3  and  apparently  covers  the  interests 
of  beneficiaries  under  express  trusts  of  real  and  per- 
sonal property.4 

§  112.  But  however  this  may  be,  it  is  now  settled 
that  even  apart  from  the  statute,  the  presumption  itself, 
in  favor  of  tenancy  in  common,  does  apply  to  beneficial 
interests  under  such  express  trusts,  where  it  is  called 
for  in  order  to  sustain  their  validity,  because  "  the  court 
is  bound,  by  that  familiar  principle  which  prevails  both 


1  Real  Property  L.  §  66.  See  Purdy  v.  Hayt,  92  N.  Y.  446,  453;  Mott 
v.  Ackerman,  92  N.  Y.  539,  549;  Gage  v.  Gage,  43  Hun,  501;  112  N.  Y. 
667 ;  Campbell  v.  Rawdon,  18  N.  Y.  412. 

2  Putnam  v.  Putnam,  4  Bradf .  308 ;  Blanehard  v.  Blanchard,  4  Hun, 
287,  aff'd  70  N.  Y.  615 ;  Lane  v.  Brown,  20  Hun,  382 ;  Van  Brunt  v.  Van 
Brunt,  111  N.  Y.  178,  187;  Matter  of  Baker,  12  State  Reporter,  741; 
Everitt  v.  Everitt,  29  N.  Y.  39,  72;  Bliven  v.  Seymour,  88  N.  Y.  469,  478. 

3  Matter  of  Kimberly,  150  N.  Y.  90,  93 ;  Matter  of  Russell,  168  N.  Y. 
169,  175.  See  §  384,  infra;  and  compare  Matter  of  Kaupper,  141  App. 
Div.  54,  aff'd  201  N.Y.  (Mem.). 

4  Opinion  of  Walworth,  Ch.,  in  Lorillard  v.  Coster,  5  Pai.  172,  228-9; 
Nelson,  J.,  in  Coster  v.  Lorillard,  14  Wend.  265,  335,  et  seg.;  Matter  of 
Lapham,  37  N.  Y.  15;  Everitt  v.  Everitt,  29  N.  Y.  39;  Matter  of  Hoffman, 
65  Misc.  126;  140  App.  Div.  122;  201  N.  Y.  247.  Compare  opinion  of 
Savage,   Ch.  J.,  Coster  v.  Lorillard,  14  Wend.  265,  315-16-17. 


§  113.]     NUMBER  OF  BENEFICIARIES  NOT  LIMITED.  71 

at  law  and  in  equity,  where  a  deed  or  will  admits 
of  a  twofold  construction,  one  of  which  would  render  it 
void,  and  the  other  would  uphold  it,  to  give  it  that  con- 
struction which  will  leave  it  effectual  in  law."  x 


Number  of  Beneficiaries  is  not  Limited. 

§  113.  It  is  only  the  term  that  must  be  restricted  to 
"  two  lives  in  being."  There  is  no  restriction  upon  the 
number  of  persons  who  may  be  designated  to  receive, 
during  that  term,  the  benefits  of  an  express  trust.2  And 
a  trust  may  also  provide,  within  the  statutory  limit,  for 
beneficiaries  not  ascertained  at  the  creation  of  the  trust, 
as,  for  instance,  children  yet  unborn,3  or  the  issue  that 
mav  be  left  by  a  designated  beneficiarv,  in  case  of  his 
death  during  the  term.4  And  on  the  same  principle,  the 
use  may  be  shifted  from  one  beneficiary  to  another  dur- 
ing the  legal  term,  the  only  requirement  being  that  the 
beneficiaries  must  become  ascertained  during  the  trust 


1  Mason  v.  Jones,  2  Barb.  229,  242 ;  Cromwell  v.  Cromwell,  2  Edw.  Ch. 
495,  affd3  Chan.  Sentinel  7;  Harrison  v.  Harrison,  36  N.  Y.  543;  Matter 
of  Verplanck,  91  N.  Y.  439 ;  Hillyer  v.  Vandewater,  24  N.  E.  Rep.  999, 
and  (without  opinion)  121  N.  Y.  681;  Vanderpoel  v.  Loew,  112  N.  Y.  167, 
177;  Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  143-5;  Butler  v.  Butler,  3 
Barb.  Ch.  304,  309.  For  cases  where  on  termination  of  the  trust  in  a 
given  share,  an  ultimate  legatee  or  devisee  becomes  a  tenant  in  common 
with  the  trustee,  see  Levi  v.  Scheel,  124  App.  Div.  613 ;  Matter  of  Viele, 
35  App.  Div.  211;  Steinway  v.  Steinway,  163  N.  Y.  183;  Sabbaton  v. 
Sabbaton,  76  App.  Div.  216;  Corse  v.  Corse,  144  N.  Y.  569;Durfee  v. 
Pomeroy,  154  N.  Y.  583;  Cussack  v.  Tweedy,  126  N.  Y.  81,  88;  Duclos 
v.  Benner,  136  N.  Y.  560;  Matter  of  Brown,  154  N.  Y.  313;  Goebel  v. 
Wolf,  113  N.  Y.  405;  Delafield  v.  Shipman,  103  N.  Y.  463. 

5  Crooke  v.  County  of  Kings,  97  N.  Y.  421,  4-10 ;  Bailey  v.  Bailey,  97  N.  Y. 
466;  Sbepard  v.  Gassner,  41  Hun,  326;  Fenton  v.  Fenton,  35  Misc.  479. 

3  Woodgate  v.  Fleet,  64  N.  Y.  566,  571 ;  Haxtun  v.  Corse,  2  Barb.  Ch. 
506,  517;  Crooke  v.  County  of  Kings,  97  N.  Y.  421,  438-9;  Harrison  v. 
Harrison,  36  N.  Y.  543,  546. 

4  Oilman  v.  Reddington,  24  N.  Y.  9,  13;  see  Harrison  v.  Harrison,  36 
N.  Y.  543,  546. 


72  GENERAL  PRINCIPLES.  [CH.  II. 

term,  and  that  their  interest  as  trust  beneficiaries  can- 
not continue  beyond  the  trust  term.1 

Illegal  Term  is  not  Presumed. 

§  114.  The  courts  will  not  assume  in  the  absence  of 
proof,  that  the  state  of  facts  existing  at  the  time  of  the 
creation  of  the  estate  was  such  as  to  render  invalid  the 
scheme  of  suspension  set  forth  in  the  instrument.2  For 
example,  if  a  suspension  is  by  the  terms  of  a  will  to  con- 
tinue until  five  persons  reach  the  age  of  thirty,  the  court 
will  not  assume  that  they  were,  at  testator's  death,  then 
under  that  age.3  And  if  a  will  directs  an  accumulation 
of  income  for  specified  individuals,  within  a  period  of 
two  designated  lives  (and  where  accordingly,  to  render 
the  plan  valid,  the  beneficiaries  must  be  minors,  as  it  is 
only  for  minors  that  accumulations  can  be  made),  the 
court  will  not  assume  that  the  beneficiaries,  at  the  time 
of  testator's  death,  were  adults.4  Nor  will  a  term  of 
suspension,  or  of  postponement  of  vesting,  be  prolonged, 
to  its  destruction,  by  mere  inference  or  implication.5 

§  115.  So  a  general  and  unlimited  power  of  appoint- 
ment to  be  exercised  in  the  future,  which  does  not  re- 
quire the  creation  of  any  illegal  estate,  will  not  be  held 


i  Woodgate  v.  Fleet,  64  N.  Y.  566,  571 ;  Gilman  v.  Reddington,  24  N.  Y. 
9,  13;  Harrison  v.  Harrison,  36  N.  Y.  543;  Frazer  v.  Hoguet,  65  App. 
Div.  192;  Underwood  v.  Curtis,  127  N.  Y.  523,  538;  Shepard  v.  Gassner, 
41  Hun,  326;  Schermerhorn  v.  Cotting,  131  N.  Y.  48,  58;  Denison  v. 
Denison,  96  App.  Div.  418,  aff'd  183  N.  Y.  505 ;  Montanye  v.  Montanye, 
29  App.  Div.  377;  Matter  of  Moloughney,  67  App.  Div.  148.  Some 
special  considerations  are  discussed  above,  in  connection  with  the  additional 
term  of  a  further  minority  in  certain  cases,  and,  in  Chapter  IV,  in  connec- 
tion with  trusts  for  accumulation. 

2Matteson  v.  Palser,  173  N.  Y.  404,  411-412  (and  see  the  opinion  below, 
56  App.  Div.  91,  95);  Matter  of  Raymond,  73  App.  Div.  11. 

•Matteson  v.  Palser,  173  N.  Y.  404,  411-412. 

4  Matter  of  Raymond,  73  App.  Div.  11. 

»  Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  149. 


§117.]      "STATUTORY  PERIOD"  TO  APPLY  RENTS.  73 

void  merely  because  under  it  the  donee  might  thereafter, 
without  departing  from  the  express  language,  attempt 
to  create  a  suspension  for  an  illegal  term.  Such  a  power 
is  in  legal  effect  a  power  to  do  what  is  lawful,  and  not 
what  is  unlawful.1  But  if  such  a  power,  which  might 
be  validly  exercised,  is  in  fact  so  exercised  as  to  attempt 
to  effect  a  suspension  for  an  illegal  term,  its  provisions, 
except  in  so  far  as  the  illegal  provisions  alone  may  be 
cut  off,  and  the  others  saved,  will  be  void.2 

The  "  Statutory  Period  "  for  Contingencies. 

§  116.  In  this  respect  the  statute  3  clearly  prescribes 
the  term  of  two  lives  in  being  at  the  creation  of  the 
estate,  with  a  further  term  of  minority  (in  the  case  of 
real  property)  where  the  suspension,  or  the  postpone- 
ment of  vesting,4  is  occasioned  by  a  contingent  remain- 
der in  fee  created  on  a  prior  remainder  in  fee,  to  take 
effect  in  the  event  specified  in  Real  Property  Law,  §  42. 5 

The  ' '  Statutory  Period  ' '  for  Trusts  to  Apply  Rents. 

§  117.  This  subject  presents  so  many  features  which 
have  no  bearing  on  other  topics  of  the  present  volume, 


'Hillen  v.  Iselin,  144  N.  Y.  365,  380;  Dana  v.  Murray,  122  N.  Y.  604, 
613;  Root  v.  Stuyvesant,  18  Wend.  257,  where  the  dissenting  opinions 
embody  the  correct  rule:  Hone's  Executors  v.  Van  Schaick,  20  Wend. 
564,  566-7;  Crooke  v.  County  of  Kings,  97  K  Y.  421,  445;  Hawley  v. 
James,  16  Wend.  61,  140,  175;  Radley  v.  Kuhn,  97  N.  Y.  26,  34;  Baker 
v.  Lorillard,  4  N.  Y.  257,  270.  See  also  as  to  imperative  and  discretionary 
powers,  Matter  of  Brown,  154  N.  Y.  313;  Smith  v.  Floyd,  140  N.  Y.  337; 
Matter  of  Gantert,  136  N.  Y.  106;  Matter  of  Tatum,  169  N.  Y.  514;  Real 
Prop.  L.,  §  157. 

2  Compare  Real  Prop.  L.  §  177  as  to  too  extensive  exercise  of  power, 
and  Root  v.  Stuyvesant,  18  Wend.  257,  274;  Austin  v.  Oakes,  117  N.  Y. 
577. 

'  Real  Prop.  L.  §  42. 

4  Matter  of  Wilcox,  194  N.  Y.  288. 

5  Quoted  supra  §  30. 


74  GENERAL  PRINCIPLES.  [CH.  II. 

that  it  will,  for  greater  convenience,  be  considered  in 
Chapter  IV. 

The  "  Statutory  Period  "  for  Trusts  to  Accumulate  Rents. 

§  118.  In  this  case  also,  the  special  nature  of  the  sub- 
jects to  be  considered  renders  it  more  appropriate  to 
take  them  up  for  consideration  in  Chapter  IV. 

The  "  Statutory  Period  "  as  to  Powers. 

§  119.  For  similar  reasons,  this  subject  will  be  con- 
sidered in  Chapter  V,  relating  to  suspension  occasioned 
by  powers. 

The  "  Statutory  Period  "  as  to  Chattels  Real. 

§  120.  The  statute x  renders  applicable  to  chattels 
real,  the  provisions  relative  to  future  estates  in  real 
property,  "  so  that  the  absolute  ownership  of  a  term  of 
years  shall  not  be  suspended  for  a  longer  period  than 
the  absolute  power  of  alienation  can  be  suspended  in 
respect  to  a  fee." 

The  "  Statutory  Period  "  as  to  "  Disposition  of  Rents  and 

Profits." 

§  121.  "  A  disposition  of  the  rents  and  profits  of  real 
property  to  accrue  and  be  received  at  any  time  subse- 
quent to  the  execution  of  the  instrument  creating  such 
disposition,  shall  be  governed  by  the  rules  established 
in  this  article  for  future  estates  in  real  property."  2 

The   "  Statutory   Period  "   for   Postponement   of   Vesting. 
§  122.  This  subject  is  discussed  in  Chapter  VI. 


1  Real  Prop.  L.  §  49. 

5  Real  Prop.  L.  §  60.     See  infra,  §  227. 


§  125.]        CERTAIN  DISPOSITIONS  NOT  AFFECTED.  75 

The  "  Statutory  Period  "  as  to  Personal  Property. 

§  123.  Except  as  applied  to  chattels  real,1  the  maxi- 
mum period  for  suspension  of  the  absolute  ownership 
of  personal  property  is  two  lives  in  being  in  all  cases.2 

Certain  Dispositions  not  Affected. 

§  124.  All  the  illustrations  of  suspension  thus  far 
considered  have  been  cases  where  the  absence  of  "  per- 
sons in  being  "  was  occasioned  by  some  contingency,  or 
some  express  trust,  or  by  or  in  connection  with  some 
power,  all  of  which  are  considered  in  detail  in  later 
chapters.  It  has  often  been  said  that  apart  from  these 
three  forms  of  interference  with  alienability,  there  are 
no  other  means  by  which  a  suspension  of  the  absolute 
power  of  alienation  can  be  effected.3 

§  125.  In  any  event,  and  whatever  the  particular 
form  of  instrument  or  disposition  in  given  cases,  it  is 
clear  that  what  is  restricted,  by  the  statutes,  within  the 
appropriate  "  statutory  period,"  is  the  term  of  suspen- 
sion of  the  power  of  alienation,  under  Rule  I,  or  under 
Rule  II  the  term  of  postponement  of  vesting,  or  under 
Rule  III  the  term  of  suspension  of  the  absolute  owner- 
ship of  personal  property.    Provisions  that  do  not  occa- 


1  Under  Real  Property  Law,  §  49.     Supra,  §  120. 

*  See  Chapter  VII. 

3Wilber  v.  Wilber,  165  N.  Y.  451,  456;  Dana  v.  Murray,  122  N.  Y. 
604;  Everitt  v.  Everitt,  29  N.  Y.  39,  90;  Kane  v.  Gott,  24  Wend.  641, 
662;  Hawley  v.  James,  16  Wend.  61,  121;  Coster  v.  Lorillard,  14  Wend. 
265,  305-6;  5  Pai.  218,  222,  et  seq. ;  Radley  v.  Kuhn,  97  N.  Y.  26;  Robert 
v.  Corning,  89  N.  Y.  225,  235;  Smith  v.  Edwards,  88  N.  Y.  92,  102; 
Leonard  v.  Burr,  18  N.  Y.  96,  107.  Many  of  the  cases,  indeed,  state  that 
there  are  only  two  forms  of  disposition,  namely  certain  trusts  and  certain 
contingencies,  which  can  occasion  suspension.  But  as  to  the  effect  of  cer- 
tain powers,  see  Chapter  V.  Matter  of  Butterfield,  133  N.  Y.  473 ;  Radley 
v.  Kuhn,  97  N.  Y.  26,  34. 


76  GENERAL  PRINCIPLES.  [CH.  II. 

sion  any  such  suspension  or  postponement  are  not  af- 
fected by  the  requirements  of  those  Rules. 

§  126.  (a)  Thus  a  mere  provision  for  postponement 
of  actual  possession  of  property,  real  or  personal,  does 
not  occasion  any  suspension  of  the  power  of  alienation, 
either  in  the  case  of  present  estates  or  interests,  benefi- 
cially vested  in  enjoyment,1  or  in  the  case  of  future 
estates  beneficially  vested  in  interest.2  And  so  there  is 
no  "  statutory  period  '■  within  which  the  exercise  of  a 
power  to  so  withhold  must  be  restricted.3 

§  127.  So  far  as  concerns  the  postponed  possession  of 
a  future  estate,  the  proposition  is  obvious  enough,  be- 
cause there  is  no  reason  why  one's  ownership  of  a  future 
estate  should  suggest  any  idea  of  his  having  a  present 
possession.4     But  where  the  estate  is  a  present  estate, 


1  Quade  v.  Bertsch,  65  App.  Div.  600,  aff'd  173  N.  Y.  615 ;  Starr  v. 
Starr,  132  N.  Y.  154;  Radley  v.  Kuhn,  97  N.  Y.  26,  35-6;  Blancbard  v. 
Blanchard,  4  Hun,  287,  aff'd  70  N.  Y.  615;  Provost  v.  Provost,  70  N.  Y. 
141,  146;  Henderson  v.  Henderson.  113  N.  Y.  1,  12;  Durfe«  v.  Pomeroy, 
154  N.  Y.  583,  595 ;  Warner  v.  Durant,  76  N.  Y  133 ;  Williams  v.  Mont- 
gomery, 148  N.  Y.  519;  Smith  v.  Edwards,  88  N.  Y.  92;  Everitt  v.  Everitt, 
29  N.  Y.  39,  75-9;  Hawley  v.  James,  16  Wend.  61;  Post  v.  Hover,  33 
N.  Y.  593;  Vanderpoel  v.  Loew,  112  N.  Y.  167,  186;  Vernon  v.  Vernon, 
53  N.  Y.  351;  Oxley  v.  Lane,  35  N.  Y.  340,  347;  Robert  v.  Corning,  89 
N.  Y.  225,  240;  Spitzer  v.  Spitzer,  38  App.  Div.  436;  Matter  of  Murphy, 
144  N.  Y.  557;  Matter  of  Keogh,  112  App.  Div.  414,  418,  aff'd  186  N.  Y. 
544.  See  also  Foote  v.  Bruggerhof,  66  Hun,  406;  Matter  of  Becker,  59 
Misc.  135;  Orange  County  Trust  Co.  v.  Morrison,  56  Misc.  88;  Galway  v. 
Bryce,  10  Misc.  255;  Horndorf  v.  Horndorf,  13  Misc.  343;  Neilson  v.  Brown, 
31  Misc.  562. 

'Murphy  v.  Whitney,  140  N.  Y.  541,  546;  Steinway  v.  Steinway,  163 
N.  Y.  183,  195;  Gilman  v.  Reddington,  24  N.  Y.  9,  18;  Wells  v.  Squires, 
117  App.  Div.  502,  aff'd  191  N.  Y.  529;  Bliven  v.  Seymour,  88  N.  Y.  469; 
Matter  of  Bray,  118  App.  Div.  533;  Thieler  v.  Rayner,  115  App.  Div.  626, 
aff'd  190  N.  Y.  546;  Shaw  v.  English,  40  Misc.  37,  40;  Roberts'  Will,  98 
N.  Y.  Supp.  809;  Matter  of  Perry,  48  Misc.  285;  also  the  cases  referred 
to  in  connection  with  the  subject  of  vesting,  in  Chapter  III. 

3  Cases  above  cited,  and  Chapter  V. 

4  Bank  of  Niagara  v.  Talbot,  110  App.  Div.  519,  aff'd  184  N.  Y.  576. 


§  128.]        CERTAIN  DISPOSITIONS  NOT  AFFECTED.  77 

and  beneficially  vested  in  enjoyment,  free  from  any 
trust,  the  idea  of  postponing  the  actual  possession  pre- 
sents, at  least  in  some  instances,  peculiarities  the  de- 
tailed discussion  of  which  would  not  be  appropriate 
here.1  The  only  feature  of  interest,  from  the  point  of 
view  of  suspension  of  alienability,  is  that  if,  in  any 
given  case,  such  mere  postponement  of  possession  is 
valid,  it  does  not  operate  by  itself  alone  to  suspend 
alienability;  and  if,  in  any  given  case,  it  is  void,  its  in- 
validity is  due  not  to  any  infringement  of  the  Rule  in 
relation  to  alienability,  but  to  other  causes  not  here  of 
interest.2 

§  128.  (h)  And  the  mere  fact  that  under  the  terms 
of  an  instrument  money  is  to  be  paid  out  in  install- 
ments, to  designated  persons,  together  with  the  inter- 
est accruing  upon  the  portions  remaining  undisbursed, 
does  not  in  itself  occasion  any  suspension  of  absolute 
ownership.  And  this  is  true  even  though  executors  may 
hold  the  fund  as  trustees  and  thus  possess  title  as  well 
as  custody.  For  such  an  arrangement,  even  though  a 
trust,  is  not  such  a  trust  as  to  prevent  a  transfer  of 
interests  by  the  beneficiary,  and  if  such  interests  are 
vested,  and  under  the  terms  of  the  gift  may  in  fact  be 
transferred  at  any  time  and  a  clear  beneficial  title  con- 
ferred, there  is  no  suspension  of  absolute  ownership, 
for  none  of  the  elements  of  such  ownership,  in  the  sense 
of  the  statute,  are  lacking.3 


1  See  §  504. 

5  "With  the  New  York  cases  cited  above,  compare  Williams  on  Executors, 
1505;  Curtis  v.  Lukin,  5  Beav.  147,  155-6;  Rocke  v.  Rocke,  9  Beav.  66; 
Re  Young's  Settlement,  18  Beav.  199;  Josselyn  v.  Josselyn,  9  Sim.  63; 
Grant  v.  Grant,  3  Y.  &  C.  171 ;  Re  Jacobs'  "Will,  29  Beav.  402 ;  Gosling  v. 
Gosling,  Johns.  (Eng.)  265;  Marsden,  Perpetuities,  206;  Saunders  v. 
Vautier,  4  Beav.  115  (aff'd  Cr.  &  Ph.  240);  Hilton  v.  Hilton,  L.  R.  14  Eq. 
468,  475;  Gray,  Perpetuities,  2nd.  Ed.  §  120,  121. 

»  Matter  of  Trumble,  199  N.  Y.  454;  Wells  v.  Squires,  117  App.  Div. 
502,  aff'd  191  N.  Y.  529. 


78  GENERAL  PRINCIPLES.  [CH.  II. 

§  129.   (c)   Cases  of  grants  or  devises,  not  in  trust, 
accompanied  by  a  prohibition  against  alienation,  have 
sometimes  been  referred  to  as  illustrating  a  suspension, 
or  attempted  suspension,    of    the    absolute    power    of 
alienation.    As  to  this  point,  it  has  been  held  that  such 
a  condition  when  imposed  upon  a  grant  or  devise  in 
fee,  is  in  itself  merely  void,  on  the  ground  that  a  fee 
simple  estate  and  a  restraint  upon  its  alienation  can- 
not in  their  nature  co-exist.1    In  Oxley  v.  Lane,  35  N.  Y. 
340,  346,  347,  it  is  said  that  "  There  are  cases  where  par- 
tial restraints  upon  the  power  of  alienation,  such  as 
conditions  not  to  sell  to  a  particular  person,  or  for  a 
particular  time,  have  been  held  good,  but  doubts  have 
been  expressed  as  to  their  correctness.     (4  Kent,  131; 
Be  Peyster  v.  Michael,  6  N.  Y.  467,  per  Ruggles,  C.  J., 
495).     In  Roosevelt  v.  Thurman   (1  Johns.  Ch.  220), 
Chancellor  Kent  held,  that  a  restriction  upon  a  devisee 
in  fee,  that  he  should  not  dispose  of  the  estate,  until  his 
eldest  son  should  become  of  age,  was  void  for  repug- 
nancy.    It  is  not  necessary,  in  the  present  case,  to  pro- 
nounce against  the  validity  of  all  partial  restraints  of 
alienation  in  the  case  of  estate  in  fee;  it  is  enough  to 
say,  that  they  cannot  be  sustained,  when  they  go  be- 
yond the  limits  fixed  by  the  law  of  perpetuities.    As  the 
restrictions  in  the  seventh  item  of  the  testator's  will  are 
repugnant  to  the  devise,  and2  may  suspend  the  power 
of  alienation  beyond  two  lives,  they  are  void;  but  the 
devise  is  good,     *     *     *     ." 

§  130.  The  propositions  quoted  involve  certain   pe- 
culiarities in  relation  to  questions  which  were  not  pre- 


1  DePeyster  v.  Michael,  6  N.  Y.  467,  493,  508 ;  Hetzel  v.  Barber,  69 
N.  Y.  1,  12;  Brown  v.  Brown,  54  App.  Div.  6;  Greene  v.  Greene,  125 
N.  Y.  506,  512 ;  Lovett  v.  Gillender,  35  N.  Y.  617,  620,  628 ;  Wieting  v. 
BelliDger,  50  Hun,  324,  328;  Craig  v.  Wells,  11  N.  Y.  315,  322;  Hume  v. 
Randall,  141  N.  Y.  499;  Deegan  v.  Wade,  144  N.  Y.  573,  578. 

2  Italics  not  in  original. 


§  130.]  CERTAIN  DISPOSITIONS  NOT  AFFECTED.  79 

sented  in  Oxley  v.  Lane,1  and  therefore  not  there  dis- 
cussed; for  if  such  a  restriction  is  repugnant  to  the 
primary  gift,  it  would  be  void  per  se,  without  reference 
to  the  measure  of  its  term;  and  if,  on  the  other  hand, 
it  is  not  thus  repugnant,  but  yet  is  void  because  it  sus- 
pends the  power  of  alienation  for  a  period  not  duly 
measured  by  lives,  then  it  would  follow  that  such  a  case 
constitutes  a  further,  and  distinct  form  of  suspension, 
in  addition  to  such  as  may  be  caused  by  certain  express 
trusts,  or  certain  future  contingencies,  or  certain  forms 
of  powers.  It  is  believed,  however,  that  the  established 
principles  which  govern  such  cases  are  these;  First, 
that  such  restrictions  upon  the  alienation  of  a  fee 
granted  or  devised,  if  general,  are  void  merely  because 
repugnant.  This  explains  why,  whether  the  term  is 
measured  by  two  lives  or  not,  they  are  simply  elim- 
inated, leaving  the  grant  or  devise  in  force.2  And  sec- 
ondly, that  if  there  are  any  cases  in  which  a  partial  re- 
striction on  alienation  could  be  held  free  from  objec- 
tion based  on  the  mere  ground  of  repugnancy,3  still 
there  is  no  suspension  of  the  power  of  alienation  on 
that  account,  because,  so  far  as  concerns  the  point  now 
under  consideration,  and  in  the  nature  of  the  case,  there 
would  then  either  be  persons  in  being  who  could  in 
some  form,  and  amongst  them,  get  rid  of  the  restriction 
and  effect  vesting  somewhere  of  an  alienable  fee;  or  if 
such  persons  were  not  in  being,  then  it  would  be  that 
fact,  involving  some  contingent  future  interest,  that 
would  be  responsible  for  the  suspension;  and  if  they 
were  in  being,  but  were  minors,  and  it  is  only  on  that 
account  that  they  cannot  convey,  there  would  be  no  sus- 
pension in  the  sense  of  the  statute. 


1  Supra. 

*  Booker  v.  Booker,  119  App.  Div.  482;  Greene  v.  Greene.  125  N.  Y. 
506,  512;  Rausch  v.  Rauseh.  21  N.  Y.  Supp.  786. 

3  See  Craig  v.  Wells,  11  N.  Y.  315,  322;  Holden  v.  Rush,  119  App.  Div. 
716. 


80  GENERAL  PRINCIPLES.  [CH.  IL 

§  131.  The  principle  that  where  an  estate  is  given 
in  one  part  of  a  will  in  clear  and  decisive  terms,  it  can- 
not be  taken  away  or  cut  down  by  raising  a  doubt  as  to 
the  meaning  or  application  of  a  subsequent  clause  or 
subsequent  words,  which  are  not  as  clear  and  decisive 
as  the  words  giving  the  estate,1  deals  directly  not  with 
what  testator  might  do  if  he  made  his  meaning  clear, 
but  only  with  what  he  will  be  presumed  to  have  in- 
tended to  do  where  the  contrary  intent  is  not  clear;  it 
is,  therefore,  not  in  point  in  the  present  discussion, 
which  deals  with  cases  where  it  is  found  that  testator 
did  intend  to  impose  limitations  upon  a  devise  other- 
wise absolute,  and  where  the  question  is  whether  such 
limitations  are  or  are  not  valid.  Nor  are  the  cases  here 
in  point  which  hold  that  a  fee  may  be  granted  or  de- 
vised to  one,  subject  to  a  power  of  sale  conferred  upon 
another.  As  such,  those  cases  involve  no  question  of 
suspension  at  all.2 

§  132.  In  the  case  of  estates  for  life  or  years,  and  irre- 
spective of  whether  the  restraints  on  alienation  in  given 
cases  may  be  lawful  or  unlawful  on  other  grounds,3  the 
principles  stated  in  §  130  would  also  apply  to  prevent 
any  illegal  suspension  of  the  power  of  alienation.4 

§  133.  And  in  general  it  is  also  to  be  noticed  that  in 
merely  prohibiting  alienation,  without  at  the  same  time 
adopting  a  form  of  disposition  such  as  to  render  aliena- 
tion impossible,  a  grantor  or  testator  must  generally, 
and  it  seems  invariably,  fail  to  effectuate  any  suspen- 
sion of  the  power  to  alienate.    He  may  thus,  indeed,  in 


1  Banzer  v.  Banzer,  156  N.  Y.  429,  435. 

2  Crittenden  v.  Fairchild,  41  N.  Y.  289;  Kinnier  v.  Rogers,  42  N.  Y. 
531 ;  Skinner  v.  Quin,  43  N.  Y.  99. 

3  DePeyster  v.  Michael,  6  N.  Y.  467,  491 ;  Holden  v.  Rush,   119  App. 
Div.  716;  see  Riggs  v.  Purcell,  125  N.  Y.  193,  199-201. 

4  See  also  Mandlebaum  v.  McDonell,  29  Mich.  78,  86;  Hartung  v.  Witte, 
59  Wis.  285 ;  Bridge  v.  Ward,  35  Wis.  687. 


§  134.]         CERTAIN  DISPOSITIONS  NOT  AFFECTED.  81 

certain  cases,  incapacitate  the  grantee  or  devisee,  for  a 
time,  from  alienating,  but  he  does  not  deprive  himself,  or 
his  heirs,  of  the  ability  to  annul  the  restriction  by  release 
or  otherwise,  and  so  he,  or  his  heirs,  and  the  grantee  or 
devisee,  may  together  effectuate  a  devolution  of  abso- 
lute title.  A  releasable  restriction  upon  the  power  of 
alienation,  does  not  suspend  the  power  of  alienation. 
The  power  is  not  suspended,  for  there  are  persons  still 
left  who  can  exercise  it.  The  control  over  alienability 
is  thus  merely  made  to  reside  in  a  former  owner,  or  his 
heirs,  instead  of  in  the  present  owner.  But  the  Rule  in 
relation  to  alienability  has  nothing  to  do  with  the  par- 
ticular place  where  the  power  to  alienate  shall  reside. 
It  is  not  its  residence  in  one  person  instead  of  another, 
but  its  existence  somewhere  as  contrasted  with  its  non- 
existence anywhere,  that  forms  the  subject  of  the  Rule. 
The  validity  or  invalidity  of  given  provisions  merely 
purporting  to  locate  the  ability  to  alienate  in  some 
more  or  less  unusual  or  unnatural  place,  is  determined 
by  other  principles,  which  do  not  depend  upon  restric- 
tion of  the  term  within  the  measure  of  lives  in  being. 
Thus  such  provisions  differ  from  those  which,  by  ren- 
dering absolute  alienability  impossible  even  though  the 
grantor  or  the  testator's  representatives  should  join  in 
an  effort  to  revive  and  exercise  the  power  to  convey, 
occasion,  in  the  sense  of  the  statute,  a  suspension  of 
the  power  of  alienation.1 

§  134.  (d)  So  an  agreement,  or  testamentary  dis- 
position, by  a  member  of  a  partnership,  providing  for 
the  continuance  of  an  interest  in  the  business,  on  behalf 
of  his  estate,  after  his  death,  does  not  by  itself,  where 
all  interests  are  alienable  and  vested,  effect  any  suspen- 
sion of  absolute  ownership.2 


1  See  also  Chapter  III.     The  test  of  validity  under  Rule  II,  is  different. 
5  See  Mr.  Demarest's  article  in  23  Bench  «.t  Bar,  9fi,  citing  Ross  v.  Harden, 
79  N.  Y.  84,  91;  Nat.  Bank  of  Newhurgh  v.  Bigler,  83  N.  Y.  51,  57:  Bell 


82  GENERAL  PRINCIPLES.  [CH.  II. 

§  135.  '(e)  And  in  Williams  v.  Montgomery,1  it  was 
held  that  an  agreement,  among  owners  of  certificates 
of  stock,  to  deposit  them  with  a  trust  company,  and  not 
to  withdraw  them  for  six  months  except  on  mutual  con- 
sent, did  not  constitute  a  suspension  of  absolute  owner- 
ship, for  the  title  was  vested,  and  on  mutual  consent 
transferable,  and  for  that  matter  any  owner  could  sell 
his  shares  even  without  such  consent,  though  he  might 
not  be  able  to  actually  deliver  the  certificates  until 
later.  And  an  investment  of  money  by  different  per- 
sons in  a  common  fund,  to  be  held  by  a  trust  company 
for  specified  purposes,  does  not  constitute  a  suspension, 
where  the  individual  rights  may  be  at  any  time  trans- 
ferred, and  all  interests  are  vested.2 

§  136.  (/)  The  mere  existence  of  a  total  or  partial 
intestacy  does  not  in  itself  occasion  any  suspension  of 
the  power  of  alienation,  for  the  estate  or. interest  not 
disposed  of  is  necessarily  represented  by  heirs,  or  exec- 
utors, or  administrators,  or  next  of  kin,  who  can  dis- 
pose of  it. 

§  137.  (g)  A  mere  contract  not  occasioning  an  ab- 
sence of  persons  who  can  alienate  property  and  not 
creating  any  contingent  future  interest  in  any  property, 
cannot  by  its  existence  offend  against  either  of  the 
Rules  relating  respectively  to  alienability  and  vesting. 
Thus  a  promissory  note  payable  at  the  end  of  a  speci- 
fied period  of  time  after  the  maker's  death,  is  valid.3 


v.  Hepworth,  134  N.  Y.  442;  Saperstein  v.  "Ullman,  49  App.  Div.  446,  448; 
Stewart  v.  Robinson,  115  N.  Y.  328,  336.  See  also  C.  W.  Co.  v.  Hodenpyl, 
135  N.  Y.  430;  Matter  of  Myers,  131  N.  Y.  409;  Walker  v.  Steers,  38  State 
Reporter,  654,  14  N.  Y.  Supp.  398;  Vernon  v.  Vernon,  53  N.  Y.  351; 
Thorn  v.  De  Breteuil,  179  N.  Y.  64;  Matter  of  Slocum,  169  N.  Y.  153; 
Master  of  Snyder,  21  N.  Y.  Supp.  430;  Matter  of  O'Reilly,  59  Misc.  136. 

1  148  N.  Y.  519. 

2  Brown  v.  The  Mutual  Trust  Co.,  22  Weekly  Dig.  395. 

"  Carnwright  v.  Gray,  127  N.  Y.  92;  Hegeman  v.  Moon,  131  N.  Y.  462. 


§  138.]        CERTAIN  DISPOSITIONS  NOT  AFFECTED.  83 

In  Syms  v.  Mayor,1  it  is  said  that  a  covenant,  in  a  lease 
for  years,  calling  for  future  renewals  each  to  contain 
an  identical  provision  for  future  renewals,  without  end, 
would  "  tend  to  create  a  perpetuity."  But  as  it  would 
in  any  event  always  be  releasable  by  the  parties,  there 
could  be  no  suspension  of  alienability  under  Rule  I, 
and  it  would  seem  equally  clear  that  no  view  of  the 
facts  could  present  any  case  of  postponement  of  vesting 
of  a  "  remainder  "  under  Rule  II.2 

§  138.  Indeed,  as  the  necessity  for  restriction  within 
the  statutory  period  only  applies  to  cases  where  alien- 
ability is  suspended,  or  vesting  postponed,  all  disposi- 
tions which  involve  the  presence  of  persons  in  being 
who  can  convey  an  absolute  fee  constitute  illustrations 
of  cases  not  affected  by  Rule  I;  and  all  in  which  the 
remainders  created  are  vested,  constitute  illustrations 
of  cases  not  affected  by  Rule  II.  And  other  illustra- 
tions of  situations  where  the  restrictions  of  those  Rules 
do  not  apply,  because  the  provisions  in  question  in- 
volve no  suspension  of  alienability,  and  no  postpone- 
ment of  vesting,  will  be  found  in  the  various  connec- 
tions where  the  several  features  of  the  Rules  are  dis- 
cussed in  later  Chapters.3 


1 18  J.  &  S.  289. 

2  See  Chapter  VI,  and  §  162. 

8  See  in  particular  §§  160-163. 


CHAPTER  III. 


SUSPENSION    OCCASIONED    BY    CONTINGENCIES. 

§  139.  Suspension  of  the  absolute  power  of  aliena- 
tion may  be  occasioned  by  certain  contingencies,  by  cer- 
tain express  trusts,  and  by,  or  in  connection  with,  cer- 
tain powers.  This  present  Chapter  deals  with  suspen- 
sion as  occasioned  by  contingencies. 

§  140.  The  test  of  the  existence  of  a  suspension,  how- 
ever occasioned,  is  furnished  by  §  42  of  the  Real  Prop- 
erty Law,  which  provides  that  "  The  absolute  power  of 
alienation  is  suspended,  when  there  are  no  persons  in 
being  by  whom  an  absolute  fee  in  possession  can  be 
conveyed.  Every  future  estate  shall  be  void  in  its  crea- 
tion, which  shall  suspend  the  absolute  power  of  aliena- 
tion, by  any  limitation  or  condition  whatever,  for  a 
longer  period  than  during  the  continuance  of  not 
more  than  two  lives  in  being  at  the  creation  of  the 
estate,"  and  in  certain  specified  cases  a  further  minor- 
ity.1 We  must,  therefore,  apply  this  statutory  test  to 
the  various  forms  of  estates,  in  order  to  ascertain  which 
can  occasion  a  suspension. 

§  141.  Estates,  as  respects  the  time  of  their  enjoy- 
ment, are  divided  into  estates  in  possession,  and  estates 
in  expectancy.2  As  an  estate  in  possession  is  one  which 
entitles  the  owner  to  the  immediate  possession  of  the 


1  Also  Real  Prop.  L.  §§  49,  50,  60,  131,  144,  178,  179.  This  test  is  not, 
however,  applicable  to  questions  arising  under  Rule  II,  §  4,  which  relates 
not  to  alienability,  but  to  vesting. 

2  Real  Prop.  L.  §  35. 

84 


§  143.]  SUSPENSION  BY  CONTINGENCIES.  85 

property,1  and,  unless  held  upon  certain  trusts,2  is  neces- 
sarily alienable,3  it  cannot  cause  any  suspension  of  the 
power  of  alienation,  on  account  of  any  contingency. 
Estates  in  expectancy  are  either  reversions  or  future  es- 
tates.4 As  to  reversions,  their  nature  is  such  that 
whether  vested  or  contingent,5  they  are  necessarily 
represented  at  all  times  by  persons  in  being  who  can 
alienate  them  for  what  they  may  prove  to  be  worth,6 
and  therefore  they  cannot  occasion  a  suspension.7  As 
to  the  other  class  of  expectant  estates,  namely  future 
estates,  they  are  either  vested  or  contingent.8  A 
future  estate  "  is  vested,  when  there  is  a  person  in  being, 
who  would  have  an  immediate  right  to  the  possession 
of  the  property,  on  the  determination  of  all  the  inter- 
mediate or  precedent  estates.  It  is  contingent  while 
the  person  to  whom  or  the  event  on  which  it  is  limited 
to  take  effect  remains  uncertain."  9 

§  142.  Now  the  term  "  vested  "  is  employed  in  the 
law  in  several  different  senses,  as  follows : 

§  143.  (1)  An  estate  is  vested  in  possession  when 
there  is  an  immediate  fixed  right  of  present  enjoyment.10 
Thus,  if  a  present  estate  for  life,  or  in  fee,  be  devised 
to  A,  he  takes,  immediately  upon  testator's  death,  a 
vested  estate  in  possession.  When  used  in  this  sense, 
the  term  "  vested  estate  "  is  synonymous  with  the  statu- 
tory term  "  estate  in  possession." 


1  Id.  §  35. 

2  Chapter  IV. 

3  Real  Prop.  L.  §  r>9. 

4  Real  Prop.  L.  §  36. 

5  Floyd  v.  Carow,  88  N.  Y.  560. 

6  Real  Prop.  L.  §  59. 

1  Woodgate  v.  Fleet,  44  N.  Y.  1 ;  Barber  v.  Brundage,  169  N.  Y.   368; 
Doane  v.  Mercantile  Trust  Co. ,  160  N.  Y.  494. 
8  Real  Prop.  L.  §  40. 
•  Real  Prop.  L.  §40. 
,ft  Matter  of  Brandreth,  169  N.  Y.  437,  441. 


86  SUSPENSION  BY  CONTINGENCIES.  [CH.  III. 

§  144.  (2)  An  estate  is  vested  in  interest,  when  there 
is  a  present  fixed  right  of  future  enjoyment.1  Thus,  if 
an  estate  be  devised  to  A  for  life,  remainder  to  B  in  fee, 
here  the  remainder  vests  in  interest  in  B.2 

§  145.  When  we  speak  of  a  "  vested  remainder,"  the 
term  is  to  be  understood  in  the  sense  of  "  vested  in  in- 
terest." As  soon  as  it  vests  in  possession,  it  ceases  to 
be  a  remainder  at  all-3 

§  146.  (3)  An  estate  may  be  vested  subject  to  being 
divested.  This  proposition  applies  both  to  present,4 
and  to  future  estates;5  and  they  may  be  defeasible 
either  in  whole,6  or  in  part.7  Illustrations  may  be 
found  in  the  case  of  estates  vested  subject  to  open  and 
let  in  new  interests,  with  resulting  partial  divesting  of 
the  shares  previously  vested,8   and  in  such  cases  the 


^awley  v.  James,  5  Pai.  318,  466;  Gott  v.  Cook,  7  Pai.  521,  543. 

2  For  a  case  illustrating  the  vesting  of  a  remainder,  first  in  interest,  and 
subsequently  in  possession,  see  Helck  v.  Reinheimer,  105  N.  Y.  470,  475. 

3  The  principles  of  construction  which  are  resorted  to  for  aid  in  distin- 
guishing between  vested  and  contingent  future  estates,  are  considered  in 
Chapter  XI. 

4  Henderson  v.  Henderson,  113  N.  Y.  1,  13;  Herriot  v.  Prime,  155 
N.  Y.  5;  Matter  of  Cramer,  170  N.  Y.  271. 

5Manice  v.  Manice,  43  N.  Y.  303;  Roome  v.  Phillips,  24  N.  Y.  463; 
Kelso  v.  Lorillard,  85  N.  Y.  177;  DuBois  v.  Ray,  35  N.  Y.  162;  Avery  v. 
Everett,  HON.  Y.  317,  321;  Kernochan  v.  Marshall,  165  N.  Y.  472;  Lyons 
v.  Ostrander,  167  N.  Y.  135;  Matteson  v.  Palser,  173  N.  Y.  404,  410; 
People's  Trust  Co.  v.  Flynn,  188  N.  Y.  385;  Stringer  v.  Young,  191  N.  Y. 
157.  Compare  future  estate  not  divested  by  death  in  the  meantime,  Matter 
of  Brown,  154  N.  Y.  313. 

6Beardsley  v.  Hotchkiss,  96  N.  Y.  201,  213;  Mead  v.  Mitchell,  17 
N.  Y.  210,  213;  Corse  v.  Chapman,  153  N.  Y.  466. 

1  Van  Axte  v.  Fisher,  117  N.  Y.  401 ;  Gilman  v.  Reddington,  24  N.  Y. 
9  ;  Steinway  v.  Steinway,  163  N.  Y.  183. 

8  Byrnes  v.  Stilwell,  103  N.  Y.  453;  Monarque  v.  Monarque,  80  N.  Y. 
320,  325;  Stevenson  v.  Lesley,  70  N.  Y.  512;  Kent  v.  Church  of  St. 
Michael,  136  N.  Y.  10;  Steinway  v.  Steinway,  163  N.  Y.  183. 


§  147.]  SUSPENSION  BY  CONTINGENCIES.  87 

estate  of  a  given  person  may,1  or  may  not,2  according 
to  the  terms  of  the  instrument,  be  wholly  divested  by 
his  death  during  the  specified  period. 

§  147.  (4)  There  may  be  a  vested  right  to  a  future 
contingent  estate.  For  when  the  contingency  is  due  only 
to  the  uncertainty  of  the  event,  but  the  person  is  certain 
in  whom,  or  whose  heirs  or  grantees  as  such,  the  con- 
tingent estate  will  certainly  vest  in  interest,  if  it  ever 
does  vest  at  all,  his  right  is  said  to  be  a  vested  right. 
Thus  if  a  future  estate  be  devised  in  the  following 
terms :  "  Should  A  die  without  leaving  any  issue,  then 
to  B  and  his  heirs,"  here,  during  the  life  of  A,  the  re- 
mainder to  B  is  contingent.  But  its  contingent  nature 
results  from  the  uncertainty  of  A's  dying  without 
issue,  and  not  from  any  uncertainty  about  B's  right  to 
the  remainder,  if  A  does  die  without  issue.  Conse- 
quently although  the  estate  is  contingent,  the  right  is 
vested.3  If  B  dies  intestate  before  A,  his  vested  right 
descends  to  his  heirs,  and  if  A  then  dies  without  issue, 
B's  heirs  take  the  estate  in  possession.  But  it  is  im- 
portant here  to  notice,  that  just  as  the  fact  that  a  fu- 
ture estate  is  vested,  is  not  inconsistent  with  its  being 
subject  to  being  divested,  so  also  the  fact  that  the  right 
to  a  contingent  estate  is  vested,  as  above  set  forth,  is  not 
necessarily  inconsistent  with  its  being  likewise  subject 
to  defeat  under  certain  circumstances,  even  though  the 


'Tucker  v.  Bishop,  16  N.  Y.  402;  Smith  v.  Scholtz,  68  N.  Y.  41;  Baker 
v.  Lorillard,  4  N.  Y.  257;  Corse  v.  Chapman,  153  N.  Y.  466. 

2  Matter  of  Brown,  93  N.  Y.  295;  Tucker  v.  Bishop,  16  N.  Y.  402; 
Surdam  v.  Cornell,  116  N.  Y.  305;  Steinway  v.  Steinway,  163  N.  Y.  183. 

32  Washburn,  Real  Property,  5th  Ed.  775;  Hennessy  v.  Patterson,  85 
N.  Y.  91;  Nellis  v.  Nellis,  99  N.  Y.  505,  516;  Ham  v.  Van  Orden,  84 
N.  Y.  257,  270;  Roosa  v.  Harrington,  171  N.  Y.  341,  353;  Matter  of 
Cramer,  170  N.  Y.  271,  277;  Matter  of  Wilcox,  194  N.  Y.  288,  296;  Matter 
of  Watts,  68  App.  Div.  357,  359. 


88  SUSPENSION  BY  CONTINGENCIES.  [CH.  III. 

specified  contingency  happens.     It  is  a  question  of  in- 
tent.1 

§  148.  (5)  So  on  the  other  hand,  it  is  sometimes  said 
that  an  estate  is  "  vested  contingently ;  " 2  the  meaning 
of  which  is,  that  it  is  vested,  subject  to  being  divested 
upon  the  happening  of  some  specified  contingency.  The 
term  "  vested ':  is  sometimes  employed  in  still  other 
senses.  Thus,  it  is  used  in  the  sense  of  "  alienable ;  "  3 
or  of  "  inviolable,"  or  of  "  non-defeasible."  4 

§  149.  Now  if  a  given  future  estate  is  vested  (other- 
wise than  upon  certain  express  trusts,  Chapter  IV),  and 
irrespective  of  whether  or  not  it  is  vested  absolutely 
or  subject  to  being  divested  in  whole  or  in  part,  it  may 
itself  be  aliened  for  what  it  may  prove  to  be  worth,5 
and  thus  cannot  itself  through  any  contingency,  occa- 
sion a  suspension  of  the  power  of  alienation.6  If  there 
is  in  such  a  case  any  suspension,  the  contingency  that 
occasions  it  must  be  due  to  some  other  estate,  interest 
or  possibility.7 

§  150.  For  the  fact  that  a  given  estate  less  than  a 
fee,    whether   present    or    future,    and   if   future   then 


1  Byrnes  v.  Stilwell,  103  N.  Y.  453;  Matter  of  Keogh,  126  App.  Div. 
285,  aff'd  193  N.  Y.  602;  Kelso  v.  Lorillard,  85  N.  Y.  177. 

2  Matter  of  Cramer,  170  N.  Y.  271,  277. 

i  Paget  v.  Melcher,  156  K  Y.  399,  405-6. 

4  Id.     See  Gray,  Perpetuities,  2nd  Ed.,  §  118. 

BReal  Prop.  L.  §59;  Griffin  v.  Shepard,  124  N.  Y.  70,  76;  Nellis  v. 
Nellis,  99  N.  Y.  505,  516;  Sawyer  v.  Cubby,  146  K  Y.  192;  Vanderpoel 
v.  Loew,  112  N.  Y.  167,  181,  186;  Lewisohn  v.  Henry,  179  N.  Y.  352,361; 
Goebel  v.  Wolf,  113  N.  Y.  405;  Henderson  v.  Henderson,  113  N.  Y.  1,  14; 
Matter  of  Young,  145  N.  Y.  535;  Byrnes  v.  Stilwell,  103  N.  Y.  453,  462. 

6  Cases  last  cited ;  Hannan  v.  Osborn,  4  Pai.  336 ;  Robert  v.  Corning,  89 
N.  Y.  225,  241. 

7  Cochrane  v.  Schell,  140  K  Y.  516,  539;  Mead  v.  Mitchell,  17  N.  Y. 
210;  Monarque  v.  Monarque,  80  N.  Y.  320;  Kent  v.  Church  of  St  Michael, 
136  N.  Y.  10;  Moore  v.  Littel,  41  N.  Y.  66,  77,  81,  83,  85,  86;  Taggart  v. 
Murray,  53  N.  Y.  233,  238-9. 


§  151.]  SUSPENSION  BY  CONTINGENCIES.  89 

whether  vested  or  contingent,  is  itself  alienable,  does 
not  necessarily  mean  that  there  is  no  suspension  of  the 
power  to  convey  a  fee  in  possession.  The  fact  that  it 
is  alienable,  only  means  that  it  does  not  itself  occasion 
any  suspension.  There  may  still  be  some  other  estate, 
or  chance  of  acquiring  an  estate,  by  which  suspension 
is  occasioned.1  Where  a  future  estate  is  held  to  be 
vested  subject  to  possible  defeasance  in  favor  of 
others,2  it  necessarily  follows  that  there  is  also  a  con- 
tingent estate  or  possibility  of  acquiring  an  estate,  in 
favor  of  the  latter ; 3  and  if  they  may  be  persons  not 
yet  in  being,  this  contingent  estate  is  such  as  to  effect  a 
suspension  of  the  power  of  alienation.4  For  contingen- 
cies or  conditions  from  the  point  of  view  of  the  respec- 
tive estates  affected  by  them,  have  a  double  nature  and 
are  both  precedent  and  subsequent.5 

§  151.  Every  contingency  subsequent,  which  sets  a 
limit  at  which  an  earlier  vested  estate  may  come  to  an 
end,  is  also  a  contingency  precedent  which  marks  the 
line  where  a  later  estate  may  begin.  It  follows  one 
estate,  but  it  precedes  another.6  In  Moore  v.  Littcl,1 
where  property  was  left  to  A  for  life,  remainder  to  his 
heirs,  the  remainder  was  treated  as  vested  during  A's 
life,  subject  to  open  and  let  in  new  "  heirs,"  and  thus 


1  Moore  v.  Littel,  41  N.  Y.  66,  77,  81,  83,  85,  86;  Taggart  v.  Murray,  53 
N.  Y.  233,  238-9;  Matter  of  Curtis,  142  N.  Y.  219;  and  cases  cited  in  §  149. 

2  See  cases  cited,  supra,  §  146. 

3  §  146.    Doscher  v.  Wyckoff,  132  App.  Div.  139. 

4  §  146.  See  Schwartz  v.  Rehfuss,  129  App.  Div.  630,  aff'd  198  N.  Y. 
585. 

5  2  Blackstone  Comm.  154;  Young  "Women's  Christian  Home  v.  French, 
187  U.  S.  401 ;  Towle  v.  Remsen,  70  N.  Y.  303,  311 ;  Graves  v.  Deterling, 
120  N.  Y.  447,  455. 

6  Knowlton  v.  Atkins,  134  N.  Y.  313,  318.  Conditions  and  limitations, 
Williams  v.  Jones,  166  N.  Y.  522,  537-8;  U.  S.  Trust  Co.  v.  Hogencamp, 
191  N.  Y.  281,  285. 

1  Supra. 


90 


SUSPENSION  BY  CONTINGENCIES. 


[CH.  II. 


subject  to  partial  defeat,  and  also  to  total  defeat  in  case 
of  the  death  of  any  "  heir  "  during  A's  life.  This  scheme 
effected  a  suspension  of  the  power  of  alienation  for  one 
life,  but  the  suspension  was  caused  not  by  the  estates 
which  were  vested,  but  by  the  possibility  that  the  vested 
interest  of  the  existing  presumptive  heirs  might  be  par- 
tially or  wholly  defeated  by  new  members  of  the  class 
who  might  yet  come  into  being  and  take  on  their  own 
account  as  purchasers,  and  whose  potential  estates,  in 
the  meantime,  could  not  be  conveyed,  because  there  was 
no  one  to  represent  them.1 

§  152.  Passing,  then,  to  the  consideration  of  con- 
tingent estates,  we  find  them  divided  into  two  classes. 
For  as  seen  from  the  statutory  definition  a  given  future 
estate  may,  in  the  first  place,  be  contingent  because 
the  event  on  which  it  is  limited  to  take  effect  is  un- 
certain, even  though  the  person  to  whom  it  is  limited 
to  take  effect  is  an  ascertained  person  in  being.  This 
is  the  class  of  cases  mentioned  above,  as  constituting, 
or  in  any  event  including,  vested  rights  to  contingent 
estates.  And  under  the  terms  of  Real  Property  Law, 
§  59,  every  expectant  estate  (thus  including  every 
future  estate),2  is  alienable,  in  the  same  manner  as 
an  estate  in  possession.3  It  follows,  therefore,  that  the 
ascertained  person  in  being  to  whom  it  is  limited  to 
take  effect  may  convey  it,  though  only  of  course  ac- 
cording to  its  nature  as  an  estate  which  may  never  vest 
all.4 


1  Moore  v.  Littel,  41  N.  Y.  66,  77,  81,  83,  85,  86;  Cochrane  v.  Schell,  140 
N.  Y.  516,  539;  Matter  of  Curtis,  142  N.  Y.  219.  And  so,  also,  postpone- 
ment of  vesting  existed  as  to  the  potential  future  estates  in  favor  of 
persons  who  might  yet  come  into  being,  Chapter  VI. 

2  Real  Prop.  L.  §  36. 

3  Chester  v.  Jumel,  125  N.  Y.  237,  252  ;  Nellis  v.  Nellis,  99  N.  Y.  505. 

4  Griffin  v.  Shepard,  124  N.  Y.  70,  76;  Roosa  v.  Harrington,  171  K  Y. 
341,  353;  Sawyer  v.  Cubby,  146  N.  Y.  192;  Dougherty  v.  Thompson,  167 


§  153.]  SUSPENSION  BY  CONTINGENCIES.  91 

§  153.  It  will  be  seen  that  between  future  estates 
"  vested  subject  to  being  divested,"  and  "  vested  rights  in 
contingent  estates,"  there  are  certain  striking  grounds  of 
similarity.1  In  both  cases  the  person  representing  the 
estate  or  right  is  in  esse  and  ascertained.  In  both  it  is 
possible  that  events  may  turn  out  so  that  his  estate  or 
right  is  afterward  cut  off,  or  expires,  or  comes  to 
nothing.  But  in  one  case  his  estate  is  already  begun, 
and  will  continue  on  and  ultimately  vest  in  possession 
unless  or  until  it  is  cut  short  or  expires,  on  the  happen- 
ing of  a  condition  or  contingency  subsequent ; 2  while 
in  the  other  case  its  very  beginning  is  dependent  upon 
the  happening  of  a  condition  or  contingency  precedent, 
before  it  can  ever  come  into  his  possession;  unless  this 
happens  he  will  never  take  anything.3 


N.  Y.  472;  Knowlton  v.  Atkins,  134  N.  Y.  313;  Peterson  v.  DeBaun,  36 
App.  Div.  259;  Curtis  v.  Fowler,  66  Mich.  698;  Hennessy  v.  Patterson,  85 
N.  Y.  91 ;  2  Washburn  on  Real  Property,  775  et  seq. ;  Moore  v.  Littel,  41 
N.  Y.  66,  83,  et  seq. ;  Kelso  v.  Lorillard,  85  N.  Y.  177,  184;  Ham  v.  VanOr- 
den,  84  N.  Y.  257,  270;  Dodge  v.  Stevens,  105  N.  Y.  585;  Leonard  v. 
Burr,  18  N.  Y.  96. 

1  Gilliam  v.  Guaranty  Trust  Co.,  186  N.  Y.  127,  132-3. 

3  Roome  v.  Phillips,  24  N.  Y.  463. 

sRoosa  v.  Harrington  171  N.  Y.  341,  353;  See  Leonard  v.  Burr,  18 
N.  Y.  96 ;  Robert  v.  Corning,  89  N.  Y.  225,  241,  Hannan  v.  Osborn,  4  Pai. 
336,  342. 

See  also  Townshend  v.  Frommer,  125  N.  Y.  446,  described  in  Camp- 
bell v.  Stokes,  142  N.  Y.  23,  30,  as  "  peculiar  and  anomalous;  "  Curtis  v. 
Murphy,  129  N.  Y.  645;  Moore  v.  Appleby,  108  N.  Y.  237;  Paget  v. 
Melcher,  156  N.  Y.  399;  Cochrane  v.  Schell,  140  N.  Y.  516,  526,  539;  and 
illustrative  cases  of  vesting  and  possibilities  of  divesting,  under  the  tax 
laws.  Matter  of  Hoffman,  143  N.  Y.  327,  334;  Matter  of  Curtis,  142 
N.  Y.  219;  Matter  of  Lansing,  182  N.  Y.  238;  Matter  of  Seaman,  147 
N.  Y.  69;  Matter  of  Davis,  149  N.  Y.  539;  Matter  of  Roosevelt,  143  N.  Y. 
120. 

If  a  remainder  is  contingent  upon  the  remainderman's  surviving  the 
life  estate,  or  is  vested  subject  to  being  divested  by  his  death  during  the 
life  estate,  and  during  the  life  estate  he  dies,  his  devise  of  the  remainder  is 
necessarily  ineffective  in  toto,  for  his  death,  which  brings  his  will  into 
operation,  also  terminates  the  estate  which  he  has  attempted  to  devise. 
Denison  v.  Denison,  96  App.  Div.  418,  aff'd  183  N.  Y.  505  ;  see  Hennessy 
v.  Patterson,  85  N.  Y.  91. 


92  SUSPENSION  BY  CONTINGENCIES.  [CH.  III. 

§  154.  As  an  estate  contingent  only  on  account  of  the 
uncertainty  of  the  event  may  be  conveyed,  it  cannot 
cause  a  suspension  of  the  absolute  power  of  alienation.1 
And  if  there  is  in  such  a  case,  any  suspension  occa- 
sioned by  a  contingency,  it  must  be  caused  not  by  the 
contingent  estate  which  can  be  conveyed,  but  by  some 
other  estate,  or  potential  estate,  which  is  contingent  for 
some  reason  which  renders  it  non-conveyable. 

§  155.  We  may,  accordingly,  lay  aside  future  estates 
which  are  contingent  solely  on  account  of  the  uncer- 
tainty of  the  event,  and  take  up  for  examination  the 
other  class  of  contingent  future  estates,2  namely,  those 
which  are  contingent,  either  solely  or  partly  because  the 
persons  to  whom  they  are  limited  to  take  effect  are  un- 
certain.3 

§  156.  The  statute  does  not  subdivide  this  latter 
class,  but  it  is  capable  of  subdivision,  and  for  the  pur- 
poses of  our  present  inquiry  such  a  subdivision  is  essen- 
tial. It  will  be  noticed  that  the  uncertainty  which 
exists  in  regard  to  the  person  to  whom  the  estate  is 
limited  to  take  effect,  may  relate  to  either  of  two  dis- 
tinct states  of  fact. 

§  157.  For  in  the  first  place,  the  uncertainty  may 
arise  out  of  the  fact  that  while  it  is  certain  that  the 
estate  in  question,  under  the  limitations  of  the  instru- 
ment creating  it,  will  vest,  if  it  ever  vests  at  all,  in 
some  one  or  more  of  a  group  of  now  living  persons,  or 
in  their  heirs,  grantees  or  devisees  as  such  and  not  as 


'Pickert  v.  Windecker,  73  Hun,  476;  Murphy  v.  Whitney,  140  N.  Y. 
541,  546;  Mott  v.  Ackerman,  92  N.  Y.  539,  550;  Nellis  v.  Nellis,  99  N.  Y. 
505,  516.  But  it  may  still,  though  alienable,  be  objectionable  under  Rule 
II,  supra,  because  not  certain  to  vest  in  due  time. 

5  Real  Prop.  L.  §  40. 

3Haynes  v.  Sherman,  117  N.  Y.  433,  439. 


§  158.]  SUSPENSION  BY  CONTINGENCIES.  93 

"  purchasers,"  yet  it  is  impossible  in  the  meantime  to 
determine  which  particular  member  of  the  group  is  the 
one  in  whom  it  will  yet  so  vest,  if  at  all.  Now  this  un- 
certainty, while  rendering  the  estate  contingent,  does 
not  in  the  smallest  degree  diminish  the  power  to  convey 
the  estate;  for  a  conveyance  of  the  estate  in  question, 
if  executed  by  all  the  members  of  the  group,  must  by 
the  terms  of  the  definition,  include  a  conveyance  by  the 
one  or  more  in  whom,  or  in  whose  grantees  or  heirs  or 
devisees  as  such,  the  estate  in  question  must  vest  if  it 
vests  at  all,  and  therefore  such  a  conveyance  would 
necessarily  alien  the  entire  estate  in  question.  In  other 
words  there  are,  in  such  a  case,  persons  in  being  by 
whom  that  particular  estate  may  be  conveyed,  and  so  it 
cannot  cause  any  suspension  of  the  absolute  power  of 
alienation.1    We  may,  therefore,  also  lay  aside  this  class. 

§  158.  In  the  second  place,  however,  the  uncertainty 
as  to  the  person  may  be  not  merely  an  uncertainty  as 
to  which  of  several  persons  in  being  will  prove  to  be  the 
particular  one  in  whom,  under  the  terms  of  the  instru- 
ment, the  estate  will  vest,  if  it  vests  at  all,  but  an  un- 
certainty arising  from  the  fact  that  the  person  who  may 
yet  prove  to  be  the  one  entitled  under  the  limitations 
of  the  instrument  is,  or,  may  be,  a  person  not  now  in 
being.2  This  is  the  only  remaining  class  of  contingent 


1  Mott  v.  Ackerman,  92  N.  Y.  539,  550;  Sawyer  v.  Cubby,  146  N.  Y. 
192;  Griffin  v.  Shepard,  124  N.  Y.  70,  76;  Dougherty  v.  Thompson,  167 
N.  Y.  472;  Knowlton  v.  Atkins,  134  N.  Y.  313;  Peterson  v.  DeBaun,  36 
App.  Biv.  259;  Denison  v.  Denison,  96  App.  Biv.  418,  aff'd  183  N.  Y. 
505;  Yates  v.  Yates,  9  Barb.  324,  347.  On  the  ground  of  undue  suspen- 
sion occasioned  by  contingencies  it  would  seem  difficult  to  explain  the 
decision  in  Sanford  v.  Goodell,  82  Hun,  369,  for  all  the  estates,  vested  or 
contingent,  were  represented  by  designated  persons  in  being  who,  by 
uniting,  could  at  any  time  convey  an  absolute  fee.  But  alienability  is  not 
the  test  of  validity  under  Rule  II,  which  relates  to  vesting.  See  Chapter 
VI. 

2  Sawyer  v.   Cubby,  146  N.  Y.  192,   199:  Cochrane  v.  Schell,  140  N.  Y. 
516,  539;  Taggart  v.  Murray   53  N.  Y.  233,  238-9. 


94  SUSPENSION  BY  CONTINGENCIES.  [CH.  Ill, 

future  estates,  and  it  must  therefore  be  here  that  we 
shall  find  the  particular  form  of  contingency  by  which 
suspension  is  effected.  And  the  mere  definition  of  the 
class  shows  that  all  cases  falling  within  its  terms  must 
effect  suspension.  For  no  conveyance  that  might  be 
made,  even  though  executed  by  all  the  persons  in  being 
in  whom  it  might  yet  vest,  could  possibly  operate  to  cut 
off  the  chance  that  it  might  yet  vest  not  in  them,  but, 
in  his  own  right  as  "  purchaser,"  in  a  person  not  now 
in  being.  Under  such  circumstances  no  joinder  of  par- 
ties could  effect  a  conveyance  of  an  absolute  fee,  and 
accordingly  the  absolute  power  of  alienation  is  sus- 
pended.1 In  case  of  a  disposition  of  real  or  personal 
property,  therefore,  the  test  of  a  suspension  of  alien- 
ability due  to  a  contingency  is,  whether,  on  the  one 
hand,  the  persons  who  are  to  take  are  all  designated 
persons  in  being,2  or  on  the  other  hand  may  be,  or  in- 
clude, persons  not  yet  in  being.3  In  the  former  case 
there  is  no  suspension  of  alienability,  and  in  the  latter 
there  is.4     Whether  or   not   a   suspension   thus   occa- 


1  Herzog  v.  Title  Guarantee  &  Trust  Co.,  177  K  Y.  86,  100;  Taggart  v. 
Murray,  53  N.  Y.  233,  238-9;  Murphy  v.  Whitney,  140  N.  Y.  541,  546; 
Hobson  v.  Hale,  95  N.  Y.  588,  612,  613;  Kilpatrick  v.  Barron,  54  Hun, 
322,  and  125  N.  Y.  751;  Graham  v.  Fountain,  2  N.  Y.  Supp.  598;  Coch- 
rane v.  Schell,  140  N.  Y.  516,  539;  Dana  v.  Murray,  122  N.  Y.  604,  617; 
Radley  v.  Kuhn,  97  N.  Y.  26,  35;  Genet  v.  Hunt,  113  N.  Y.  158,  169; 
Trowbridge  v.  Metcalf,  5  App.  Div.  318,  324,  aff'd  158  N.  Y.  682;  Manice 
v.  Manice,  43  N.  Y.  303,  362 ;  Jenkins  v.  Fahey,  73  N.  Y.  355,  358-9 ; 
Ward  v.  Ward,  105  N.  Y.  68,  75;  Delaney  v.  McCormack,  88  N.  Y.  174, 
183;  Smith  v.  Floyd,  140  N.  Y.  337;  Matter  of  Baer,  147  N.  Y.  348,  354; 
Campbell  v.  Stokes,  142  N.  Y.  23,  30 ;  Townshend  v.  Frommer,  125  N.  Y. 
446;  Paget  v.  Melcher,  156  N.  Y.  399;  McGillis  v.  McGillis,  154  N.  Y. 
532;  Guernsey  v.  Van  Riper,  126  App.  Div.  368;  Haynes  v.  Sherman,  117 
N.  Y.  433,  439;  Sawyer  v.  Cubby,  146  N.  Y.  192,  199;  Forsyth  v.  Rath- 
bone,  34  Barb.  388.  In  personal  property,  the  same  class  of  contingencies 
effect  the  same  result.     Chapter  VII. 

5  Hersee  v.  Simpson,  154  N.  Y.  496;  Matter  of  Young,  145  N.  Y.  535. 

3  McGillis  v.  McGillis,  154  N.  Y.  532. 

4  Matter  of  Smith,  131  N.  Y.  239,  247;  Teed  v.  Morton,  60  N.  Y.  502; 
Tucker  v.  Bishop,  16  N.  Y.  402;  Bisson  v.  W.  S.  R.  R.  Co.,  143  N.  Y. 


§  160.]  SUSPENSION  BY  CONTINGENCIES.  95 

sioned  is  lawful,  depends  on  whether  or  not  the  term 
during  which  it  may  continue  is  duly  limited.1 

§  159.  The  question  of  whether  an  estate  is  vested 
or  contingent  generally  arises  in  cases  where  its  valid- 
ity depends  on  its  being  held  to  be  vested.  But  some- 
times the  situation  is  reversed,  and  the  validity  of  the 
devise  depends  on  its  being  held  contingent,  as  for  in- 
stance, where  there  is  a  devise  to  a  corporation  not  yet 
organized.2 

§  160.  Thus  far  we  have  been  discussing  "  estates." 
That  term,  so  far  as  concerns  the  present  subject,  is 
broad  enough  to  include,  and  to  subject  to  the  same 
principles,  all  present  rights  and  interests,  either  vested 
or  contingent,  which  may  by  possibility  develop  into 
estates  at  a  future  day.3  They  are  in  any  event  potential 
estates,  and  do  or  do  not  occasion  a  suspension  of  the 
power  of  alienation,  according  as  they  do  or  do  not  in- 
volve an  absence  of  persons  in  being  who  can  convey  an 
absolute  fee  in  possession.     But  in  addition  to  such 


125;  Cochrane  v.  Schell,  140  N.  Y.  516,  539.  As  to  the  scope  of  the  statute 
relating  to  suspension  of  the  absolute  ownership  of  personal  property,  see 
Chapter  VII.  The  person  in  whom  an  estate  may  yet  vest  and  whose 
non-existence  in  the  meantime  causes  a  suspension  of  the  power  of  aliena- 
tion, may  be  a  corporation  not  yet  created.  Lougheed  v.  D.  B.  Church, 
129  N.  Y.  211;  Booth  v.  Baptist  Church,  126  N.  Y.  215,  240.  See  also 
Chapter  VIII. 

1  Hillen  v.  Iselin,  144  N.  Y.  365,  378  ;  Lougheed  v.  D.  B.  Church,  129 
N.  Y.  211;  Van  Nostrand  v.  Marvin,  16  App  Div.  28,  161  N.  Y.  650; 
Sawyer  v.  Cubby,  146  N.  Y.  192;  Purdy  v.  Hayt,  92  N.  Y.  446,  450; 
Cochrane  v.  Schell,  140  N.  Y.  516,  525,  539 ;  Monarque  v.  Monarque,  80 
N.  Y.  320;  Brown  v.  Evans,  34  Barb.  594;  Altrock  v.  Vandenburgh,  25 
N.  Y.  Supp.  851. 

2  Lougheed  v.  D.  B.  Church,  58  Hun,  364,  129  N.  Y.  211:  Plymouth 
Society  v.  Hepburn,  57  Hun,  161;  Burrillv.  Boardman,43  N.  Y.  254,  258; 
McGillis  v.  McGillis,  154  N.  Y.  532,  545.  See  Fearne  on  Contingent  Re- 
mainders, 536;  Drake  v.  Pell,  4  Edw.  Ch.  251,  268-9. 

8  Nicoll  v.  N.  Y.  &  E.  R.  Co.,  12  N.  Y.  121,  133. 


96  SUSPENSION  BY  CONTINGENCIES.  [CH.  III. 

estates  or  interests,  there  are  certain  chances,  or  possi- 
bilities, which  must  also  be  considered. 

§  161.  Illustrations  of  this  class  may  be  found  in 
rights  of  entry  for  condition  broken  and  possibilities 
of  reverter.1  Such  possibilities  cannot  operate  in  them- 
selves to  occasion  a  violation  of  Rule  I,  relating  to 
alienability,  because,  even  where  not  of  such  nature  as 
to  be  assignable,  they  may  be  released.2  Nor,  it  may  be 
said  in  passing,  can  they  occasion  a  violation  of  Rule 
II,  relating  to  vesting,  for  that  deals  exclusively  with 
what  may  be  created  and  not  with  what  may  be  re- 
served.3 

§  162.  So  options,  and  other  contracts  affecting 
lands,  can  be  released,  and  thus  do  not  occasion  any 
suspension  of  alienability  under  Rule  I,  and  no  matter 
how  broadly  the  term  "  remainder  "  may  be  construed, 
they  are  not  within  it  and  therefore  cannot  effect  any 
postponement  of  vesting  under  Rule  II. 

§  163.  Mortgages  cannot  occasion  suspension,  for  they 
may  be  released,  and  the  mortgagor  and  mortgagee  can 
by  uniting  convey  an  absolute  fee.4    Nor  can  they  offend 


1  Upington  v.  Corrigan,  151  N.  Y.  143  ;  Fowler  v.   Coates,  201  N.  Y. 
257,  263;  Plumb  v.  Tubbs,  41  N.  Y.  442;  Matter  of  Hart,  61  App.  Div. 
587,  aff'd  168  N.  Y.  640;  Vail  v.  L.  I.  R.  R.  Co.,  106  N.  Y.  283:  Leonard 
v.  Burr,  18  N.  Y.  96;  Lougheed  v.  D.  B.  Church,  129  N.  Y.  211;  Storer 
v.  Eyclesheimer,  4  Abb.  Ct.  App.  Dec.  309 ;  Miller  v.  Emans,  19  N.  Y 
384;  Gibert  v.  Peteler,  38  N.  Y,  165;  DePeyster  v.  Michael,  6  N.  Y.  467 
Birdsall  v.  Grant,  37  App.   Div.  348;  Rose  v.  Hawley,  118  N.  Y.   502 
Adams  v.  Perry,  43  N.  Y.  487,  490,  496 ;  Thayer  v.  McGee,  20  Mich.  195 
Smith  v.  Barrie,  56  Mich.  315;  Mandlebaum  v.  McDonell,   29  Mich.  78 
Horner  v.  Chicago,  etc. Co. ,  38  Wis.  165;  Mills  v.  Evansville  Seminary,  58 
Wis.  135;  Challis  on  Real  Property,  63;  Reeves,  Real  Property,  Vol.  II, 
§§  719-726. 

5  Upington  v.  Corrigan,  and  other  cases  last  cited. 

3  See  Chapter  VI. 

4  Hawley  v.  James,  16  Wend.  61,  179,  and  259. 


§  164.]  SUSPENSION  BY  CONTINGENCIES.  97 

against  Rule  II,  as  to  vesting,  because  they  create  no 
future  estate.  Of  course  the  absolute  ownership  of  the 
mortgage  itself  may  be  suspended,  as  in  the  case  of  any 
other  property.1  Similar  principles  apply  to  docketed 
judgments;  escheat;2  covenants,  reservations  and  ease- 
ments.3 

§  164.  The  bearing  of  the  foregoing  sections  upon 
dispositions  of  personal  property,  is  discussed  in  Chap- 
ter VII. 


1  Harris  v.  Clark,  7  N.  Y.  242,  244,  260. 

2  Wadsworth  v.  Wadsworth,  12  N.  Y.  376,  379,  381 ;  Wright  v.  Saddler, 
20  N.  Y.  320,  329. 

3  Trustees  v.  Lynch,  70  N.  Y.  440,  452  ;  Tallmadge  v.  The  East  River 
Bank,  26  N.  Y.  105 ,  Hill  v.  Miller,  3  Pai.  254 ;  Trustees  of  Watertown  v. 
Cowen,  4  Pai.  510;  Barrow  v.  Richard.  8  Pai.  351;  Curtiss  v.  Ayrault,  47 
N.  Y.  73;  Cady  v.  S.  W.  W.  Co.,  134  N.  Y.  W^,  see  13  Abb.  N.  C.  105, 
note.  The  fact  that  a  devise  is  on  condition  that  after  the  devisee,  a  con 
vict,  is  liberated  from  prison  he  shall  live  on  the  devised  premises  and 
furnish  his  mother  and  sister  with  firewood  and  board,  does  not  effect  a 
suspension.  The  title  vests  immediately  upon  testator's  death  subject,  if 
technically  upon  condition  at  all,  to  a  condition  subsequent  which  could 
always  be  avoided  by  a  joint  conveyance,  or  at  any  rate  by  a  release. 
LaChapelle  v.  Burpee,  69  Hun,  436.  For  other  illustrations  of  disposi- 
tions not  affected  by  the  Rules,  see  §§  124-138,  supra,  and  the  following 
chapters. 


CHAPTER  IV. 

SUSPENSION"    OCCASIONED    BY    EXPRESS    TEUSTS. 

The  Four  Classes  of  Express  Trusts. 

The  Trustee  and  the  Beneficiary. 

What  Trusts  Occasion  Suspension. 

Leases  Under  Express  Trusts. 

Trust  to  Satisfy  Mortgage  from  Rents. 

Trust  to  pay  Annuity  from  Rents. 

Statutory  Period  for  Trusts  to  Accumulate. 

Statutory  Period  for  Trusts  to  Apply  Rents. 

Combination  of  different  Trusts  and  Powers. 

Rents  and  Profits  Undisposed  Of. 

§  165.  In  the  Notes  to  their  draft  of  the  Revised 
Statutes  the  Revisers  say  that  "  an  estate  is  never  in- 
alienable unless  there  is  a  contingent  remainder,  and 
the  contingency  has  not  yet  occurred." *  In  conse- 
quence of  the  unfortunate  form  of  this  statement,  a 
question  early  arose  as  to  whether  a  suspension  of  the 
power  of  alienation  could  be  occasioned,  in  the  absence 
of  a  contingent  remainder,  by  a  present  estate  vested 
in  the  trustee  of  an  express  trust.2  But  the  courts 
have  recognized  and  established  the  full  application  of 
the  principle  embodied  in  Rule  I,  relating  to  alien- 
ability, to  present  express  trusts  as  well  as  to  future 
contingencies.3 

§  166.  But  just  as  it  is  not  every  contingent  future 
estate,  so  it  is  not  every  form  of  express  trust,  that 


1  5  Stat,  at  Large  (Edmonds),  Appendix,  307. 

2  Kane   v.  Gott,  24  Wend.  641,  662,  and  opinion  of  McCoun,  V.  C,  in 
Lorillard  v.  Coster,  5  Pai.  172,  188  et  seq. 

3  See  §§  222-237. 

98 


§   167.]        THE  FOUR  CLASSES  OF  EXPRESS  TRUSTS.  99 

occasions  a  suspension.1  The  test  is  in  both  cases  the 
same ;  for  "  The  absolute  power  of  alienation  is  sus- 
pended, when  there  are  no  persons  in  being  by  whom 
an  absolute  fee  in  possession  can  be  conveyed."  2  We 
have  just  examined,  in  Chapter  III,  the  subject  of  sus- 
pension occasioned  by  the  fact  that  some  contingent 
estate  may  yet  vest  in  persons  not  now  in  being,  and  for 
that  reason  an  absolute  fee  cannot  be  conveyed.  We 
are  now,  however,  in  taking  up  the  subject  of  suspen- 
sion occasioned  by  express  trusts,  to  examine  a  class  of 
cases  where  all  the  estates  and  interests  which  go  to 
make  up  an  absolute  fee,  may  be  vested  in  "  persons  in 
being,"  but  yet  some  of  those  persons,  in  consequence 
of  certain  restrictions  imposed  by  statute  upon  their 
freedom  to  convey,  are  not  persons  in  being  by  whom  a 
conveyance  can  be  made.3 

The  Four  Classes  of  Express  Trusts. 

§  167.  In  applying  to  express  trusts  of  real  prop- 
erty this  statutory  test  of  the  presence  or  absence  of  the 
absolute  power  of  alienation  we  have  in  addition  to 
trusts  for  charities,  which  are  treated  in  a  later  chap- 
ter, only  four  classes  of  trusts  to  deal  with.  The  Real 
Property  Law,  §  96,  provides  that  "  An  express  trust 
may  be  created  for  one  or  more  of  the  following  pur- 
poses : 4 


1  Murphy  v.  Whitney,  140  K  Y.  541,  546. 
5  Real  Prop.  L.,  §42. 

3  Murphy  v.  Whitney,  140  N.  Y.  541,  546. 

4  Method  and  form  of  creating  and  declaring  express  trusts.  Ashe  v. 
Ashe,  113  N.  Y.  232;  Stevenson  v.  Lesley,  70  N.  Y.  512;  Johnston  v. 
Spicer,  107  N.  Y.  185;  Douglas  v.  Cruger,  80  X.  Y.  15;  Nearpass  v.  New- 
man, 106  N.  Y.  47;  Wallace  v.  Berdell,  97  N.  Y.  13;  Thebaud  v.  Schcr- 
merhorn,  30  Hun,  332;  Van  Cott  v.  Prentice,  104  N.  Y.  45;  Cook  v.  Barr, 
44  N.  Y.  156;  Robb  v.  Washington  &  Jefferson  College,  185  N.  Y.  485, 
492;  Young  v.  Young,  80  N.  Y.  422;  Beaver  v.  Beaver,  117  N.  Y.  421; 
Martin  v.  Funk,  75  N.  Y.  134;  Hutchins  v.  Van  Vechten,  140  N.  Y.  115; 


100     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.  IV. 

"  1.  To  sell  real  property  for  the  benefit  of  creditors; 

"  2.  To  sell,  mortgage  or  lease  real  property  for  the 
benefit  of  annuitants  or  other  legatees,  or  for  the 
purpose  of  satisfying  any  charge  thereon ; 

"  3.  To  receive  the  rents  and  profits  of  real  property, 
and  apply  them  to  the  use  of  any  person,  during  the  life 
of  that  person,  or  for  any  shorter  term,  subject  to  the 
provisions  of  law  relating  thereto ; x 

"  4.  To  receive  the  rents  and  profits  of  real  property, 
and  to  accumulate  the  same  for  the  purposes,  and 
within  the  limits,  prescribed  by  law."  2 

§  168.  "  Uses  and  trusts  concerning  real  property, 
except  as  authorized  and  modified  by  this  article,  have 
been  abolished."  3 


Wendtv.  Walsh,  164  N.  Y.  154;  Jacobs  v.  Morrison,  136  N.  Y.  101; 
Kirsch  v.  Tozier,  143  N.  Y.  390;  McPherson  v.  Rollins,  107  N.  Y.  316; 
McArthur  v.  Gordon,  126  N.  Y.  597.  As  to  declaration  of  trust  of  per- 
sonal property,  see  Waddv.  Hazelton,  137  N.  Y.  215;  Govin  v.  de  Miranda, 
140  N.  Y.  474  and  662 ;  Locke  v.  P.  L.  &  T.  Co.,  140  N.  Y.  135.  Chaplin, 
Express  Trusts  and  Powers,  pp.  27-67. 

1  As  in  the  first  and  second  class,  so  the  beneficiaries  of  a  trust  of  this 
third  class  need  not  be  infants  or  married  women ;  or  improvident  or  in- 
competent persons.  Such  a  trust  may  be  created  for  the  benefit  of  any 
person.  A  dictum  to  the  contrary  in  Radley  v.  Kuhn,  97  N.  Y.  26,  32, 
does  not  represent  the  now  established  principle.  Cochrane  v.  Schell,  140 
N.  Y.  516,  533.  For  various  forms  of  expressing  a  trust  of  this  class,  see 
Vernon  v.  Vernon,  53  N.  Y.  351,  359;  Van  Cott  v.  Prentice,  104  N.  Y.  45; 
Leggett  v.  Perkins,  2  N.  Y.  297 ;  Marx  v.  McGlynn,  88  K  Y.  357,  375 
(compare  Wetmore  v.  Truslow,  51  N.  Y.  338);  Cruger  v.  Douglas,  4  Edw. 
Ch.  433,  446,  510,  aff 'd  5  Barb.  225 ;  DeKay  v.  Irving,  5  Den.  646,  651 ; 
Morse  v.  Morse,  85  N.  Y.  53;  Hubbard  v.  Housley,  43  App.  Div.  129, 
160  N.  Y.  688;  Holly  v.  Hirsch,  135  N.  Y.  590;  Kiah  v.  Grenier,  56  N.  Y. 
220,  225;  Verdin  v.  Slocum,  71  N.  Y.  345;  Haxtun  v.  Corse,  2  Barb.  Ch. 
506,  517;  Wainwright  v.  Low,  132  N.  Y.  313;  McArthur  v.  Gordon,  126 
N.  Y.  597,  610;  Denike  v.  Harris,  84  N.  Y.  89,  94;  Heermans  v.  Burt,  78 
N.  Y.  259;  Chaplin,  Express  Trusts  and  Powers,  pp.  27-67. 

2  A  trust  of  this  class  can  only  exist  for  the  benefit  of  minors.  Infra, 
§214. 

3  Real  Prop.  L.,  §91. 

Essential  elements  of  express  trusts.  Brown  v.  Spohr,  180  N.  Y.  201, 
209;  Greene  v.  Greene,  125  N.  Y.  506,  510;  Rose  v.  Hatch,  125  N.  Y. 


§  169.]      THE  FOUR  CLASSES  OF  EXPRESS  TRUSTS.  101 

§  169.  "  Where  an  express  trust  relating  to  real 
property  is  created  for  any  purpose  not  specified  in  the 
preceding  sections  of  this  article,  no  estate  shall  vest 
in  the  trustees ; 1  but  the  trust,  if  directing  or  author- 
izing the  performance  of  any  act  which  may  be  lawfully 
performed  under  a  power,2  shall  be  valid  as  a  power 
in  trust,3  subject  to  the  provisions  of  this  chapter. 
*  *  *." 4     But  a  fully  constituted  express  trust  cannot 


427,  431 ;  Sherwood  v.  American  Bible  Society,  4  Abb.  Ct.  Ap.  Dec.  227 ; 
Underwood  v.  Curtis,  127  N.  Y.  523,  538;  Hickok  v.  Bunting,  67  App. 
Div.  560;  Matter  of  Dewey,  153  N.  Y.  63,  66;  Close  v.  Farmers' L.  & 
T.  Co.,  195  N.  Y.  92,  99;  Steinhardt  v.  Cunningham.  130  N.  Y.  292,  300; 
McDougall  v.  Dixon,  19  App.  Div.  420;  Kirk  v.  Kirk,  137  N.  Y.  510; 
Putnam  v.  Lincoln  Safe  Deposit  Co.  191  N.  Y.  157,  182;  Higgins  v. 
Downs,  101  App.  Div.  119;  Mee  v.  Gordon,  187  N.  Y.  400,  407.  Compare 
Williams  v.  Boul,  101  App.  Div.  593,  aff'd  184  N.  Y.  605 ;  Hopkins  v. 
Kent,  145  N.  Y.  363;  Cochrane  v.  Schell,  140  N.  Y,  516,  527;  Chaplin, 
Express  Trusts  &  Powers,  pp.  51-67. 

Non-essentials.      Woodward    v.    James,    115    N.    Y.    346;    Tobias    v. 
Ketchum,  32  N.  Y.  319,  327;  Ward  v.  Ward,  105  K  Y.  68,  73  ;  Hathaway 
v.  Hathaway,  37  Hun,  265;  Vernon  v.  Vernon,  53  N.  Y.  351;  Donovan  v. 
Van  DeMark,  78  N.  Y.  244;  Toronto  G.  T.  Co.  v.  C.  B.  &  Q.   R.  R.  Co., 
123  N.  Y.  37,  44;  Cochrane  v.  Schell,  140  N.  Y.  516;  Robert  v.  Coming, 
89  N.  Y.    225,   236;    Marx  v.  McGlynn,    88  N.    Y.   357,    375;   Morse  v. 
Morse,    85  N.  Y.  53,  60;  Leggett  v.  Perkins,  2  N.  Y.  297,  305;  Weeks 
v.  Cornwell,  104  K  Y.  325;  DeKay  v.   Irving,  5  Den.  646,  C51;  Dillaye 
v.  Greenough,  45  N.  Y.  438,  444;  Manice  v.  Manice,  43  N.  Y.  303,  363 
Mee  v.  Gordon,  187  N.  Y.  400,  407;  Brewster  v.  Striker,  2  N.  Y.  19,  36 
Beekman  v.  Bonsor,  23  N.  Y.  298,  314;  Verdin  v.  Slocum,  71  N.  Y.  345 
Van  Cott  v.  Prentice,  104  N.  Y.  45;  Wetmore  v.  Truslow,  51  N.  Y.  338 
Chaplin,  Express  Trusts  &  Powers,  pp.  23-27. 

1  Morse  v.  Morse,  85  N.  Y.  53,  60;  Cooke  v.  Piatt,  98  N.  Y.  35;  Adams 
v.  Perry,  43  N.  Y.  487;  Hagerty  v.  Hagerty,  9  Hun,  175. 

2  See  Tilden  v.  Green,  130  N.  Y.  29,  53;  Steinhardt  v.  Cunningham,  130 
N.  Y.  292,  300. 

3  N.  Y.  Dry  Dock  Co.  v.  Stillman,  30  N.  Y.  174, 190;  Hawley  v.  James, 
16  Wend.  61,  174-5;  Close  v.  Farmers*  L.  &  T.  Co.,  195  N.  Y.  92,  99. 

4  Real  Prop.  L.  §  99;  Steinhardt  v.  Cunningham,  130  N.  Y.  292,  300; 
Holly  v.  Hirsch,  135  N.  Y.  590;  Haug  v.  Schumacher,  166  N.  Y.  506, 
517-8;  Kernochan  v.  Marshall,  165  N.  Y.  472,  479;  Greenland  v.  Waddell, 
116  K  Y.  234;  Manice  v.  Manice,  43  N.  Y.  303,  364;  Downing  v.  Mar- 
shall, 23  N.  Y.  366,  379;  Reynolds  v.  Denslow,  80  Hun,  359  (see  Mullins 
v.  Mullins,  79  Hun,  421);  Belmont  v.  O'Brien,  12  N.  Y.  394,  403;  Robert 


102  SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.  IV. 

be  sustained  as  a  power  merely  for  the  sole  purpose  of 
rendering  valid  a  scheme  which  would  otherwise  be 
void  as  effecting  an  illegal  suspension.1 

§  170.  If,  on  the  other  hand,  the  attempted  trust  is 
passive,  the  legal  title  follows  the  beneficial  interest, 
free  even  from  a  power.2 

§  171.  The  statute  concerning  suspension  of  the 
power  of  alienation  cannot  be  evaded  by  a  direct  devise 
accompanied  by  a  secret  trust,  though  the  fact  that  it 
is  not  openly  expressed  may  necessitate  a  different 
form  of  proceeding  to  determine  the  facts  and  apply 
the  remedy.3 

v.  Corning,  89  N.  Y.  225,  237 ;  Heermans  v.  Robertson,  64  N.  Y.  332,  342 ; 
Marvin  v.  Smith,  46  N.  Y.  571,  575;  Weeks  v.  Cornwell,  104  N.  Y.  325; 
Ward  v.  Ward,  105  N.  Y.  68,  73;  Jacoby  v.  Jacoby,  188  N.  Y.  124. 

1  Fargo  v.  Squiers,  154  N.  Y.  250,  260;  Gano  v.  McCann,  56  How.  Pr. 
337. 

2  Real  Prop.  L.,  §§  92,  93;  Wendt  v.  Walsh,  164  N.  Y.  154;  Burns  v. 
Allen,  89  Hun,  552,  aff'd  154  N.  Y.  741;  Syracuse  Savings  Bank  v. 
Holden,  105  N.  Y.  415;  Fisher  v.  Hall,  41  N.  Y.  416;  Kiah  v.  Grenier,  56 
N.  Y.  220,  225;  Close  v.  Farmers'  L.  &  T.  Co.,  195  K  Y.  92;  Hagerty  v. 
Hagerty,  9  Hun,  175;  Gilman  v.  McArdle,  99  N.  Y.  451,  456;  Everitt  v. 
Everitt,  29  N.  Y.  39,  71;  Woodgate  v.  Fleet,  64  K  Y.  566,  573;  Helck 
v.  Reinheimer,  105  N.  Y.  470,  475.  See  Post  v.  Hover,  35  N.  Y.  593,  597; 
Killain  v.  Allen,  52  Barb.  605;  Morgan  v.  Masterton,  4  Sandf.  442,  449. 
Compare  Matter  of  De  Reycke,  99  App.  Div.  596,  and  Guental  v.  Guental, 
113  App.  Div.  310;  Towashend  v.  Frommer.  125  N.  Y.  446;  Moore  v. 
Appleby,  36  Hun,  368,  aff'd  108  N.  Y.  237;  Matter  of  Livingston,  34  N.  Y. 
555,  567;  N.  Y.  Dry  Dock  Co.  v.  Stillman,  30  N.  Y.  174,  193.  Implied, 
and  resulting  trusts.  Real  Prop.  L.,  §  93;  Clark  v.  Clark,  147  N.  Y.  639; 
Johnston  v.  Hughes,  187  K  Y.  446;  Jacoby  v.  Jacoby,  188  N.  Y.  124; 
Smith  v.  Edwards,  88  N.  Y.  92,  102;  Schierloh  v.  Schierloh,  148  K  Y. 
103;  Darrow  v.  Calkins,  154  N.  Y.  503,  517.  Trusts  for  married  women. 
Domestic  Relations  Law,  §  59;  Genet  v.  Hunt,  113  N.  Y.  158,  172.  Prec- 
atory words.  Clay  v.  Wood,  153  N.  Y.  134;  Matter  of  Gardner,  140 
N.  Y.  122,  128;  Willets  v.  Willets,  20  Abb.  N.  C.  471;  35  Hun,  401,  rev'd 

103  N.  Y.  650. 

3  O'Hara  v.  Dudley,  95  N.  Y.  403;  Matter  of  Kelemen,  126  N.  Y.  73; 
Booth  v.  Baptist  Church,  126  N.  Y.  215;  Matter  of  Ingersoll,  131  N.  Y. 
573 ;  Forster  v.  Winfield,  142  N.  Y.  327,  333 ;  Amherst  College  v.  Ritch, 
151  N.  Y.  282,  323;  Curtis  v.  Moore,  152  N.  Y.  159;  Edson  v.  Bartow,  154 
N.  Y.  199,  219. 


§  173J         THE  TRUSTEE  AND  THE  BENEFICIARY.  103 

§  172.  Now,  of  the  four  authorized  classes  of  express 
trust,  two  are  such  that  by  themselves  alone,  they  can- 
not occasion  suspension  of  the  power  of  alienation, 
and  two  are  such  that  by  themselves  alone  they  must 
occasion  such  suspension.  Before  discussing  this  classi- 
fication further,  it  will  be  convenient  to  state  briefly 
the  relation  of  the  trustee  and  the  beneficiary  to  one 
another,  and  to  the  estate  and  interests  involved. 

The  Trustee  and  the  Beneficiary. 

§  173.  By  §  105  of  the  Real  Property  Law,  it  is  pro- 
vided that  "  If  the  trust  is  expressed  in  the  instrument 
creating  the  estate,  every  sale,  conveyance  or  other  act 
of  the  trustee,  in  contravention  of  the  trust,  except  as 
provided  in  this  section,  shall  be  absolutely  void.  .  .  ."  l 
And  §  103  of  the  Real  Property  Law,  provides  that 
"  The  right  of  a  beneficiary  of  an  express  trust  to  re- 
ceive rents  and  profits  of  real  property  and  apply  them 
to  the  use  of  any  person,  can  not  be  transferred  by 
assignment  or  otherwise,  but  the  right  and  interest  of 
the  beneficiary  of  any  other  trust  in  real  property  may 
be  transferred."  2 


1  The  section  referred  to  proceeds  to  provide  for  mortgages,  sales,  pur- 
chases or  exchanges  under  certain  conditions,  with  the  approval  of  the 
court.  Leases  are  dealt  with  in  Real  Prop.  L.,  §  106.  See  also  Id.  §  107. 
Matter  of  Clarke,  59  Hun,  557,  128  N.  Y.  658;  Matter  of  Roe,  119  N.  Y. 
509. 

The  fact  that  the  court  may  thus  authorize  the  trustee  to  sell,  mortgage 
or  exchange,  as  by  Real  Property  Law,  §  105,  does  not  obviate  any 
suspension  otherwise  existing,  for  several  reasons :  for  (1)  the  court  is  not 
a  "  person  "  in  the  sense  of  the  statute  relating  to  suspension;  (2)  the  grant- 
ing of  its  consent  is  not  in  any  sense  participation  in  a  conveyance,  but  a 
condition  precedent  to  any  conveyance;  (3)  the  court  cannot  grant  it  at  its 
option,  but  only  in  case  it  finds  that  certain  facts  exist;  (4)  the  estate  or 
fund  would  still  remain  subject  to  the  same  trust,  notwithstanding  the 
shift  in  the  identity  of  it  physical  make-up.  All  these  points  have  been 
considered  in  Chapter  II. 

s  This  does  not  apply  to  trusts  created  prior  to  the  original  enactment 


104     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS   [CH.  IV. 

§  174.  Thus,  under  the  first  of  these  statutory  provi- 
sions, there  are  trusts  such  that  a  conveyance  would 
be  in  contravention  of  them,  and  as,  in  those  cases,  the 
trustee,  who  holds  the  legal  title,  cannot  convey,  the 
absolute  power  of  alienation  is  suspended.  This  con- 
stitutes the  particular  reason  why  certain  trusts  occa- 
sion suspension.  But  in  addition,  the  second  of  the 
statutory  provisions  just  quoted  renders  it  impossible 
for  the  beneficiary  of  certain  trusts  to  transfer  his 
rights,  and  thus  makes  it,  for  reasons  elsewhere  con- 
sidered, appropriate  to  say,  as  the  courts  have  often 
said,  that  this  provision  may  also  co-operate  in  occa- 
sioning suspension  of  the  power  of  alienation.  In 
order  to  more  fully  set  forth  the  various  estates  and 
interests  under  consideration,  the  following  proposi- 
tions should  here  be  stated. 

§  175.  The  Real  Property  Law,  §  100,  provides  that 
"  except  as  otherwise  prescribed  in  this  chapter,  an  ex- 
press trust,  valid  as  such  in  its  creation,  shall  vest  in 
the  trustee  the  legal  estate,  subject  only  to  the  execu- 
tion of  the  trust,  and  the  beneficiarv  shall  not  take 
any  legal  estate  or  interest  in  the  property,  but  may 
enforce  the  performance  of  the  trust."  1  The  corre- 
sponding section  of  the  Revised  Statutes,2  provided 
that  such  a  trust  "  shall  vest  the  whole  estate  in  the 
trustee,  in  law  and  in  equity,  subject,"  etc.  It  has, 
therefore,  often  been  laid  down  that  the  trustee  takes 
the  entire  legal  estate;3  and  also  the  entire  equitable 


of  the  statute.  Dyett  v.  C.  T.  Co. ,  140  N.  Y.  54.  As  to  personal  prop- 
erty, see  Chapter  VII. 

]Steinhardt  v.  Cunningham,  130  N.  Y.  292,  300;  Cochrane  v.  Schell, 
140  N.  Y.  516;  Kernochan  v.  Marshall,  165  N.  Y.  472;  Hascall  v.  King, 
162  N.  Y.  134. 

!1R,S.  729,  §  60. 

3  Van  Cott  v.  Prentice,  104  N.  Y.  45,  52-3;  Marx  v.  McGlynn,  88  K  Y. 
357,  376;  Asche  v.  Asche,  113  N.  Y.  232,  235;  Amory  v.  Lord,  9  N.  Y. 
403,   410;  Douglas  v.  Cruger,  80  N.  Y.   15,   18;  Lahey  v.  Kortright,  132 


§  176.]  THE  TRUSTEE  AND  THE  BENEFICIARY.  105 

title,1  and  becomes  for  all  purposes  of  full  and  un- 
tramraeled  control  and  direction,  the  exclusive  owner 
of  the  land.2 

§  176.  But  even  under  the  provision  of  the  Revised 
Statutes  above  quoted,  conferring  upon  the  trustee, 
"  the  whole  estate,"  "  in  law  and  in  equity,"  as  well 
as  under  the  provision  of  the  Real  Property  Law  which 
confers  "  the  legal  estate,"  the  statute  only  refers  to 
the  trust  estate  itself,  including  whatever  legal  estate 
is  necessary  for  the  due  performance  of  the  trust  pur- 
poses. For  by  Real  Prop.  L.,  §  101, 3  it  is  provided  that 
"  The  last  section  shall  not  prevent  any  person,  creat- 
ing a  trust,  from  declaring  to  whom  the  real  property, 
to  which  the  trust  relates,  shall  belong,  in  the  event  of 
the  failure  or  termination  of  the  trust,  or  from  grant- 
ing or  devising  the  property,  subject  to  the  execution  of 
the  trust.  Such  a  grantee  or  devisee  shall  have  a  legal 
estate  in  the  property,  as  against  all  persons,  except  the 
trustees,  and  those  lawfully  claiming  under  them." 
Thus  the  "  whole  estate,"  or  "  legal  estate,"  which  vests 
in  the  trustee,  does  not  interfere  with  the  creation  or 
reservation  of  estates  or  interests  not  embraced  in  the 
trust.4 


N.  Y.  450;  Kernochan  v.  Marshall,  165  N.  Y.  472,  479;  Scott  v.  West,  63 
"Wis.  529,  562.  As  to  devises  to  aliens  as  trustees,  see  Howard  v.  Moot, 
64  N.  Y.  262,  and  the  index,  under  Aliens. 

1  Cases  above  cited. 

2  Marx  v.  McGlynn,  88  N.  Y.  357,  376;  Asche  v.  Asche,  113  N.  Y.  232, 
235. 

31  R.  S.  721,  §69. 

4  Embury  v.  Sheldon,  68  N.  Y.  227,  235;  Douglas  v.  Cruger,  80  K  Y. 
15;  Stevenson  v.  Lesley,  70  N.  Y.  512,  517;  Genet  v.  Hunt,  113  N.  Y. 
158,  169,  172-3,  Gilman  v.  Reddington,  24  N.  Y.  9,  15,  16;  Goebel  v. 
Wolf,  113  N.  Y.  405;  Matter  of  Brown,  154  N.  Y.  313,  325;  Brown  v. 
Richter,  25  App.  Div.  239;  Rhodes  v.  Caswell,  41  App.  Div.  229;  Losey 
v.  Stanley,  147  N.  Y.  560,  568 ;  Campbell  v.  Stokes,  142  N.  Y.  23  (which 
comments  on  the  case  of  Townshend  v.  Frommer,  125  N.  Y.  446)  ;  Locke 
v.  F.  L.  &  T.  Co.,  140 N.  Y.  135, 146;  Knowlton  v.  Atkins,  134  N.  Y.  313; 


106  SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.    IV. 

§  177.  The  existence  of  a  valid  express  trust  is  con- 
sistent with  the  contemporaneous  existence  of  a  legal 
estate  in  remainder  in  the  beneficiary,  limited  on  the 
trust  estate,  and  descendible,  devisable  and  alienable, 
although  he  has  no  title  to  the  precedent  estate  in  the 
trustee.1  The  present  beneficial  interest  and  the  future 
title  in  remainder  in  the  same  person,  do  not  merge.2 
And  so  there  may  be  such  a  remainder  limited  to  some 
person  other  than  the  beneficiary.3  And  by  Real  Prop. 
L.,  §  102,4  it  is  further  provided  that  "  Where  an  ex- 
press trust  is  created,  every  legal  estate  and  interest 
not  embraced  in  the  trust,  and  not  otherwise  disposed 
of,  shall  remain  in  or  revert  to,  the  person  creating  the 
trust  or  his  heirs."  5  And  even  though  the  precedent 
estate  is  held  in  trust  for  the  lives  of  the  same  persons 
in  whom  a  future  estate  thus  vests  through  intestacy, 
the  existence  of  the  prior  trust  does  not  interfere  with 
the  beneficial  vesting  of  the  future  estate.6 

§  178.  And  instead  of  either  in  terms  directlv  limit- 
ing  a  remainder,  or  making  no  disposition  whatever  of 
the  expectant  estate,  the  creator  of  the  trust  may  direct 


Hopkins  v.  Kent,  145  N.  Y.  363:  Matter  of  Tienken,  131  N.  Y.  391; 
Matter  of  Tompkins,  154  N.  Y.  634,  644.  See  Toms  v.  Williams,  41 
Mich.  552,  566;  Van  Camp  v.  Fowler,  59  Hun,  811;  Nicoll  v.  Walworth, 
4  Den.  385;  Norton  v.  Norton,  2  Sandf.  296. 

1  Crooke  v.  County  of  Kings,  97  N.  Y.  421,  434;  Mott  v.  Ackerman,  92 
K  Y.  539;  Vanderpoel  v.  Loew,  112  N.  Y.  167;  Van  Brunt  v.  Van  Brunt, 
111  N.  Y.  178,  187;  Moore  v.  Appleby,  36  Hun,  368,  aff'd  108  N.  Y.  237; 
Embury  v.  Sheldon,  68  N.  Y.  227,  234;  Stevenson  v.  Lesley,  70  N.  Y. 
512,  516;  Asche  v.  Asche,  113  N.  Y.  232;  Connolly  v.  Connolly,  122  App. 
Div.  492,  495;  Van  Axte  v.  Fisher,  117  N.  Y.  401. 

2  Id.  And  so  in  personal  property.  Warner  v.  Durant,  76  N.  Y.  133; 
Van  Brunt  v.  Van  Brunt,  111  N.  Y.  178. 

3  Nicoll  v.  Walworth,  4  Den.   385;  Bergmann  v.  Lord,  194  N.  Y.  70,  75. 
41R.  S.  729,  §62. 

5  Lougheed  v.  D.  B.  Church,  129  N.  Y.  211 ;  Van  Nostrand  v.  Marvin, 
16  App.  Div.  28;  161  N.  Y.  650. 

"Doane  v.  Mercantile  Trust  Co.,  160  N.  Y.  494;  Bergmann  v.  Lord, 
194  N.  Y.  70,  76.     As  to  personal  property,  see  Chapter  VII. 


§  180.]        THE  TRUSTEE  AND  THE  BENEFICIARY.  107 

the  trustees,  at  the  termination  of  the  trust  estate,  to 
convey  the  fee,  either  to  designated  persons,  or  to  per- 
sons who  shall  then  answer  to  a  given  description,  or 
to  persons  hereafter  to  be  designated  by  way  of  an 
appointment.1  And  the  terms  of  the  instrument  and 
the  nature  of  the  trustee's  duties  may  be  such  as  to  give 
him  the  fee  simple,  so  long  as  the  trust  lasts,  with  no 
legal  remainder  whatever  in  those  who  are  to  take  upon 
the  termination  of  the  trust.2 

§  179.  "  A  devise  of  real  property  to  an  executor  or 
other  trustee,  for  the  purpose  of  sale  or  mortgage,  where 
the  trustee  is  not  also  empowered  to  receive  the  rents 
and  profits,3  shall  not  vest  any  estate  in  him;  but  the 
trust  shall  be  valid  as  a  power,  and  the  real  property 
shall  descend  to  the  heirs,  or  pass  to  the  devisees  of 
the  testator,  subject  to  the  execution  of  the  power."  4 

§  180.  The  beneficiary,  as  such,  of  an  express  trust, 
has  under  the  statutes  above  quoted,  and  in  the  sense 
indicated,  no  estate  or  interest  in  the  land;5  his  only 
concern  in  the  matter  is  to  see  that  the  trustee  does  his 


1  Chapter  V. 

2  Salisbury  v.  Slade,  160  N.  Y.  278 ;  Bennett  v.  Garlock,  79  N.  Y.  302. 
(See  also  the  dissenting  opinion  of  Rapallo.  J.,  p.  322.)  Briggs  v.  Davis, 
21  N.  Y.  574;  Duvall  v.  English  Ev.  L.  Church  of  St.  James,  53  N.  Y. 
500;  Brennan  v.  Willson,  71  N.  Y.  502;  Knox  v.  Metropolitan  El.  Ry.  Co., 
58  Hun,  517,  520,  aff'd  128  N.  Y.  625. 

3  See  Cooke  v.  Piatt,  98  N.  Y.  35,  39 ;  Heermans  v.  Burt,  78  N.  Y.  259. 

4  Real  Prop.  L.,  §  97;  Matter  of  Christie,  59  Hun,  153,  156,  aff'd  as 
Matter  of  Will  of  Butterfield,  133  N.  Y.  473;  Weeks  v.  Cornwell,  104 
N.  Y.  325,  338;  Hubbard  v.  Housley,  43  App.  Div.  129;  160  N.  Y.  688. 
Although  this  statute  refers  only  to  devises,  it  is  stated  in  Steinhardt  v. 
Cunningham,  130  N.  Y.  292,  299,  that  the  same  rule  also  applies  to  grants. 
But  see  Heermans  v.  Robertson,  64  N.  Y.  332,  342.  The  creator  of  the 
trust  may  be  the  trustee.  Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  141. 
The  real  creator  of  the  trust  may  be  some  one  other  than  the  person  who 
actually  executes  the  formal  trust  instrument.  See  Culross  v.  Gibbons, 
130  N.  Y.  447,  453,  and  Wendt  v.  Walsh,  164  N.  Y.  154. 

6  Real  Prop.  L.(  §100. 


108.  SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSIS.  [CH.  IV. 

duty  by  him,  and  all  he  needs,  for  this  purpose,  the 
statute  gives  him,  namely,  the  right  to  enforce  the  per- 
formance of  the  trust.1  And  after  a  trust  deed  once 
takes  effect  and  becomes  irrevocable,  the  fact  that  the 
rents  are  in  fact  received  by  the  grantor  instead  of  the 
trustee  cannot  impair  its  validity  as  against  the  cestuis 
que  trust,  or  affect  their  rights.2 

§  181.  But  notwithstanding  the  technical  relations 
of  the  trustee  and  the  beneficiary  in  respect  to  the 
actual  legal  title  to  the  property  held  in  trust,  as 
applied  to  the  estate  or  term  affected,  yet  after  all  the 
trustee  has  personally  no  property  right  in  the  trust. 
The  property  right  is  in  the  beneficiary.3 

What  Trusts  Occasion  Suspension. 

§  182.  Inasmuch,  then,  as  the  sole  test  of  suspension 
of  the  absolute  power  of  alienation  is  found  in  the  pres- 
ence, or  absence,  of  persons  in  being  by  whom  an  abso- 
lute fee  in  possession  can  be  conveyed,  it  follows  that 


1  Id.  Indefiniteness  of  designation  of  beneficiaries.  Guental  v.  Guental, 
113  App.  Div.  310;  Harrington  v.  Abberton,  115  App.  Div.  177.  Where  a 
grantor  evidently  intends  to  create  a  valid  trust,  a  provision  that  the 
beneficiaries  shall  have  no  legal  or  equitable  right  to  principal  or  interest, 
■will  be  construed  as  merely  equivalent  to  the  provision  of  Real  Prop.  L., 
§  100,  and  not  as  denying  the  right  in  the  beneficiaries  to  enforce  the  trust 
as  against  the  trustees.     Van  Cott  v.  Prentice,  104  N.  Y.  45,  53-3. 

2  Wallace  v.  Berdell,  97  K  Y.  13,  25.  For  the  bearing  and  scope  of  the 
proposition  that  "the  same  person  cannot  be  at  the  same  time  trustee  and 
beneficiary  of  the  same  identical  interest,"  see  Weeks  v.  Frankel,  197  N.  Y. 
304;  Woodward  v.  James,  115  N.  Y.  346,  357;  Rose  v.  Hatch,  125  K  Y. 
427,  431-2;  Robertson  v.  de  Brulatour,  188  K  Y.  301;  Rogers  v.  Rogers, 
111  N.  Y.  228,  237  et  seg. ;  Bender  v.  Paulus,  197  N.  Y.  369;  Greene  v. 
Greene,  125  N.  Y.  506,  510;  Losey  v.  Stanley,  147  N.  Y.  560,  568;  Rankine 
v.  Metzger,  69  App.  Div.  264,  269,  aff'd  174  N.  Y.  540;  Matter  of  Farrell, 
133  App.  Div.  97,  aff'd  198  N.  Y.  579;  Austin  v.  Oakes,  117  N  .  Y.  577; 
Amory  v.  Lord,  9  N.  Y.  403,  412  ;  Haendle  v.  Stewart,  84  App.  Div.  275. 

3  Brearley  School  v.  Ward,  201  N.  Y.  358,  371 ;  Metcalfe  v.  Union  Trust 
Co.,  181  N.  Y.  39. 


§  184.]         WHAT  TRUSTS  OCCASION  SUSPENSION.  109 

the  distinction  between  trusts  which  do,  and  those 
which  do  not,  occasion  suspension,  is  identical  with 
that  between  trusts  which  do,  and  those  which  do  not, 
operate  to  incapacitate  the  persons  who  might  other- 
wise effect  such  a  conveyance.  So  far  as  concerns  sus- 
pension occasioned  by  express  trusts,  the  persons  who 
might  convey  the  title,  or  transfer  the  beneficial  rights, 
if  not  thus  incapacitated,  are  obviously  the  trustee  and 
the  persons  beneficially  interested.  We  will  first  con- 
sider the  case  of  the  trustee. 

§  183.  As  already  seen,  every  sale,  or  conveyance  or 
other  act  of  the  trustee  of  an  express  trust,  if  in  con- 
travention of  the  trust,  is  void,  except  in  certain  cases 
here  immaterial.  If  not  thus  in  contravention  it  would 
not  be  void.  Accordingly,  to  find  which  trusts  involve 
inability  to  convey,  we  have  only  to  determine  which 
are  such  that  a  convevance  would  be  in  contravention 
of  the  trust  expressed.1  Now  the  mere  reading  of  the 
section 2  which  defines  the  four  authorized  classes  of 
express  trusts  in  real  property,  shows  at  once  that  two 
of  them  exist  for  the  express  purpose  of  effecting  a  con- 
veyance of  some  estate  or  interest  in  the  property,  and 
the  other  two  for  purposes  which,  standing  alone,  are 
inconsistent  with  any  power  to  convey. 

§  184.  In  order  to  create  a  trust  under  subdivisions 
1  or  2,  of  Real  Property  Law,  §  96,  the  sale  or  other 
transfer  of  interest  must  be  the  primary  purpose  of 
the  grant,  and  the  duty  of  the  grantee  must  be  impera- 
tive, without  any  discretion  in  the  trustee  except  as  to 


•Belmont  v.  O'Brien,  12  N.  Y.  394;  Schreyer  v.  Schreyer,  101  App. 
Div.  456,  461,  aff'd  182  N.  Y.  555;  Fitzgerald  v.  Topping,  48  N.  Y.  438, 
444;  U.  S.  Trust  Co.  v.  Roche,  116  N.  Y.  120,  130;  Cruger  v.  Jone8,  18 
Barb.  467. 

5  Real  Prop.  L.  §  96. 


110     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

the  time  and  manner  of  performing  that  duty.1  These 
two  classes  comprise  trusts  to  effect  alienation,  and  not 
to  suspend  the  power  of  alienation.2  A  trust  which 
will  operate  to  suspend  the  power  of  alienation  cannot 
be  created  under  these  two  classes.3  But  though  a 
trust  of  the  first  or  second  class  cannot,  considered 
merely  as  such,  and  by  itself  alone,  effect  suspension, 
yet  if  a  trust  to  sell  is  not  to  be  exercised  until  a  future 
date,  and  then  for  the  benefit  of  a  trustee  of  another 
trust  which  is  of  such  a  character  that  its  trustee  can- 
not release  or  assign,  a  suspension  will  result.4 

§  185.  On  the  other  hand,  under  the  third  and  the 
fourth  of  the  four  classes  of  express  trusts  authorized 
by  Eeal  Property  Law,  §  96  (subd.  3  and  4),  being 
those  to  receive  and  apply  rents  and  profits  of  real 
property,  and  those  to  receive  and  accumulate  rents 
and  profits  of  real  property,  a  sale  by  the  trustee  would, 
so  far  as  concerns  the  mere  trust  itself,  and  apart  from 
some  other  power  specially  conferred,  be  in  contraven- 
tion of  the  trust  and  therefore  void.5  This  inability  to 
convey  (except  as  specifically  authorized  either  for  the 
purpose  of  changing  the  form  of  the  trust  property  or 
of  terminating  the  trust  in  whole  or  in  part)  is  of  the 
very  essence  and  purpose  of  those  two  trusts.  A  trust 
created  under  either  of  these  two  classes,  for  the  gen- 
eral receipt  and  application,  or  the  general  receipt  and 
accumulation,  of  rents  and  profits,  necessarily,  there- 
fore,   effects   a    suspension   of   the   absolute   power   of 

1  Woerz  v.  Rademacber,  120  N.  Y.  62;  Heermans  v.  Burt,  78  N.  Y. 
259.  A  discretionary  power  of  sale  will  not  suffice.  Steinhardt  v.  Cun- 
ningham, 130  N.  Y.  292,  300;  Cooke  v.  Piatt,  98  N.  Y.  35,  38,  39.  See 
Henderson  v.  Henderson,  113  N.  Y.  1,  11. 

2  Cochrane  v.  Schell,  140  N.  Y.  516;  Steinhardt  v.  Cunningham,  130 
N.  Y.  292,  300. 

8  Hascall  v.  King,  162  N.  Y.  134. 

4  Garvey  v.  McDevitt,  72  N.  Y.  556. 

5  Real  Prop.  L.  §  105. 


§  186.]  WHAT  TRUSTS  OCCASION  SUSPENSION.  Ill 

alienation,1  unless  the  instrument  also  creates  a  sepa- 
rate trust  or  power  for  alienation,  a  subject  discussed, 
infra,  §§  241-242. 

§  186.  We  will  now  consider  the  bearing,  upon  sus- 
pension of  the  power  of  alienation,  of  restrictions  im- 
posed by  statute  on  the  power  of  the  beneficiary  to 
transfer  his  rights.  And  in  this  connection,  it  should 
be  noticed  that  we  are  here  dealing  with  suspension  of 
the  power  to  alienate  real  property,  and  as  the  benefi- 
ciary, as  such,  does  not  hold  the  legal  title,  he  could  not 
of  course,  merely  by  virtue  of  his  status  as  beneficiary, 
convey  it,  and  thus  in  a  certain  sense  it  may  correctly 
be  said  that  it  is  not  the  restriction  imposed  on  his 
power  to  transfer  his  interests,  but  the  restriction  im- 
posed on  the  power  of  the  trustee,  the  holder  of  the 
title,  to  convey,  that  occasions  suspension  of  the  power 
of  alienation.  Nevertheless  there  is  another  sense  in 
which  the  restriction  on  the  power  of  the  beneficiary  to 
transfer  does  co-operate  in  occasioning  suspension.  For 
the  restriction  is  such  as  to  render  it  impossible  for  the 


1  Douglas  v.  Cruger,  80  N.  Y.  15;  U.  S.  Trust  Co.  v.  Roche,  116  K  Y. 
120,  130;  Cruger  v.  Jones,  18  Barb.    467;  Wetmore  v.   Porter,  92  N.   Y. 
76;  L'Armoureaux  v.  Van  Rensselaer,  1  Barb.  Cb.  34,  37;  Fitzgerald  v. 
Topping,  48  N.   Y.  438,  444;  Everitt  v.  Everitt,  29  N.  Y.  39,  90;  Lewi- 
sobn  v.  Henry,  179  N.  Y.  352;  Kalish  v.  Kalish,  166  N.  Y.  368;  Slater  v. 
Slater,  114  App.  Div.  160,  aff'd  188  N.  Y.  633;  Herzog  v.  Title  Guarantee 
&  Trust  Co.,  177  N.  Y.  86;  Brown  v.  Quintard,  177  N.  Y.  75;  Murphy 
v.  Whitney,   140  N.  Y.  541,  546;  Matter  of  Kirby,  113  App.  Div.  705 
Radley  v.  Kubn,  97  N.  Y.  26,  34;  Robert  v.  Corning,  89  N.  Y.  225,  235 
Smith  v.  Edwards,  88  N.  Y.  92,  102;  Leonard  v.  Burr,  18  N.  Y.  96,  107 
Kahn  v.  Tierney,  135  App.  Div.  897,   201    N.    Y.  516;   Frazer  v.  Hoguet 
65  App.  Div.  192;  Farmers'  Loan  &  Trust  Co.  v.  Kip,  192  N.  Y.  266,  278 
Crooke  v.  County  of  Kings,  97  N.  Y.  421 ;  Woodridge  v.  Bockes,  59  App. 
Div.  503,  aff'd  170  N.  Y.  596.     Suspension  may  be  occasioned  by  trusts 
limited  to  begin  in  future,  as  well  as  by  present  trust  estates.     Manice  v. 
Manice,  43  N.  Y.  303,  365;  Mason  v.  Mason's  Executors,  2  Sandf.  Ch.  432, 
474,  aff'd  2  Barb.  229 ;  Garvey  v.  McDevitt,  72  N.  Y.    556 ;  Peck  v.  Sher- 
wood, 56  N.  Y.  615;  Webster  v.  Morris,  66  Wis.  364;  Doscher  v.  Wyckoff, 
132  App.  Div.  139. 


112      SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS   [CH.  IV. 

beneficiary,  by  assigning  his  rights,  to  end  the  purpose 
of  the  trust,  and  thus  its  existence,  and  thereby  effectu- 
ate the  vesting  of  an  absolute  title.  From  that  point 
of  view  the  statutory  prohibition  on  such  transfers  is  a 
factor  in  effecting  the  suspension  of  the  power  of  aliena- 
tion.1 So  again,  not  as  a  matter  of  logical  necessity, 
but  as  a  matter  of  fact,  as  our  law  now  stands  any 
trust  whose  beneficiary  is  under  no  statutory  inability 
to  effectuate  the  transfer  of  his  beneficial  rights,  is  also 
a  trust  whose  trustee  is  under  no  statutory  inability  to 
convey.  The  two  respective  capacities,  to  transfer  bene- 
ficial rights  and  to  convey  the  legal  title,  usually  go 
together.2  It  is  here  appropriate,  therefore,  to  consider 
the  law  governing  the  subject  of  the  beneficiary's  right 
to  transfer  his  interests. 

§  187.  Under  the  Revised  Statutes,  1  E.  S.  730,  §  63, 
it  was  provided  that  "  No  person  beneficially  interested 
in  a  trust  for  the  receipt  of  the  rents  and  profits  of 
lands,  can  assign  or  in  any  manner  dispose  of  such  in- 
terest; but  the  rights  and  interest  of  every  person  for 
whose  benefit  a  trust  for  the  payment  of  a  sum  in  gross 
is  created,  are  assignable."  Under  that  statute,  the 
rights  of  a  beneficiary  under  a  trust  of  the  first  or  sec- 
ond classes  of  trusts,3  could  be  assigned,  and  those  of 
a  beneficiary  under  a  trust  of  the  third  or  fourth 
classes,4  could  not  be  assigned,5  except  possibly  in  cer- 
tain peculiar  cases  where  the  payment  of  a  "  sum  in 
gross,"  instead  of  the  payment  or  accumulation  of  rents 
in  general,  was  involved.6     Under  the  Real  Property 


1  Hawley  v.  James,  16  Wend.  61,  165-6. 

2  See,  however,  the  new  statute  relating  to  certain  personal  property 
trusts,  infra,  §  399. 

3  Real  Prop.  L.,  §  96,  Subd.  1  and  2. 

4  Real  Prop.  L.,  §  96,  subd.  3  and  4. 
8  Matter  of  Kirby,  113  N.  Y.  705. 

6  Radley  v.  Kuhn,  97  N.  Y.  26. 


§  189.]         WHAT  TRUSTS  OCCASION  SUSPENSION.  113 

Law,  §  103,  it  is  provided  that  "  The  right  of  a  benefi- 
ciary of  an  express  trust  to  receive  rents  and  profits  of 
real  property  and  apply  them  to  the  use  of  any  person, 
cannot  be  transferred  by  assignment  or  otherwise,  but 
the  right  and  interest  of  the  beneficiary  of  any  other 
trust  in  real  property  may  be  transferred."  * 

§  188.  Inasmuch  as  it  is  now  settled,2  that  the  first 
and  second  classes  of  express  trusts  are  not  trusts  for 
the  receipt  of  rents  and  profits  by  the  trustee,  it  is  clear 
that  under  either  of  the  statutes  last  above  quoted  the 
rights  of  the  beneficiaries  thereunder  can  be  assigned.3 
It  is  also  clear  that  under  a  trust  of  the  third  class, 
to  receive  rents  and  profits  and  apply  them  to  the  use 
of  any  person,  the  rights  of  the  beneficiary,  at  least  so 
far  as  the  trust  merely  provides  for  the  application  of 
rents  and  profits  generally,4  are  not  assignable.5  So 
the  mere  fact  that  the  trustee  of  an  express  trust  is 
given  a  power  of  sale  such  as  to  obviate  suspension  of 
the  power  of  alienation  as  to  the  real  property  does  not 
render  assignable  the  interest  of  the  beneficiary.6 

§  189.  In  regard,  however,  to  trusts  of  the  fourth 
class,  to  receive  rents  and  profits  and  (instead  of  apply- 
ing them,  in  the  ordinary  sense)  accumulate  them  for 
the  benefit  of  a  minor,  attention  should  be  called  to 
certain  peculiarities  in  the  phraseology  of  §  103  of  the 
statute,  above  quoted,  relating  to  transferability  of 
beneficial  right.  The  distinction  it  draws,  is  that  be- 
tween "  trusts  to  receive  the  rents  and  profits  of  real 


1  For  the  new  statutory  provision  on  this  subject  in  relation  to  personal 
property,  see  §  399. 

3  See  §§  199-204. 

"Radley  v.  Kuhn,  97  N.  Y.  26. 

4  Radley  v.  Kuhn,  97  N.  Y.  26,  81. 

»  Douglas  v.  Cruger,  80  N.  Y.  15,  18. 
6  Robert  v.  Corning,  89  N.  Y.  225,  236. 


114     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.  IV. 

property  and  apply  them  to  the  use  of  any  person  "  (a 
phrase  quoted  bodily  from  the  definition  of  express 
trusts  of  the  third  class),1  and  "  any  other  trust  in  real 
property."  Thus,  taking  the  words  literally,  it  would 
appear2  that  the  prohibition  in  §  103  applied  only  to 
express  trusts  of  the  third  class,  and  not  to  those  of  the 
fourth  class.  It  is  believed,  nevertheless,  that  under 
the  statute  last  quoted,  transfers  of  interest  by  benefi- 
ciaries are  still  as  fully  prohibited  in  the  case  of  trusts 
to  receive  and  accumulate  rents  and  profits  generally, 
as  in  the  case  of  trusts  to  receive  and  apply  rents  and 
profits  generally,  and  for  the  following  reasons. 

§  190.  (a)  The  Revised  Statutes  in  the  section  1 
R.  S.  730,  §  63,  corresponding  to  Real  Property  L.,  §  103, 
above  quoted,  provided  that  "  no  person  beneficially 
interested  in  a  trust  for  the  receipt  of  the  rents  and 
profits  of  lands,  can  assign,"  etc.  That  section  obvi- 
ously covered  both  subdivision  3  and  subdivision  4  of 
the  section  defining  the  four  classes  of  trusts,  each  of 
which  began,  as  do  the  present  corresponding  subdivi- 
sions with  the  words  "  To  receive  the  rents  and  profits." 
And  it  was  in  fact  settled  that  the  prohibition  of  1 
R.  S.  730,  §  63  applied  to  both  of  those  subdivisions 
where  the  trust  contemplated  either  a  general  receipt 
and  application  in  the  one  case,  or  a  general  receipt  and 
accumulation  in  the  other.3  Now  the  Commissioners 
of  Revision  state  that  their  section  now  numbered  103, 
as  phrased  by  them,  is  "  unchanged  in  substance." 

§  191.  '(b)  The  reference  in  §  103  to  "trusts  to  re- 
ceive and  apply,"  while  certainly  employing  a  some- 
what obscure  term  to  cover  trusts  for  accumulation, 


1  Real  Prop.  L.,  §  96,  subd.  3. 

2  See  Consolidators'  Note  to  the  section. 
»  Radley  v.  Kuhn,  97  N.  Y.  31. 


§  193.]         WHAT  TRUSTS  OCCASION  SUSPENSION.  115 

can  be  understood  in  that  sense,  for  the  rents  received 
and  accumulated  are  currently  set  aside  for  the  use  of 
the  beneficiary,  and  in  the  final  result  are  to  be  paid 
over  to  him ;  and  the  statutory  term  "  apply  "  has  been 
held  to  be  satisfied  by  a  direction  to  "  pay,"  1  and  a 
trust  to  pay  over  rents  or  income  quarterly,  or  annu- 
ally, is  a  trust  to  apply  the  same,  and  the  beneficiary's 
interest  is  not  assignable.2 

§  192.  (c)  The  statute,  if  so  construed  as  to  permit 
assignment,  would  become  inconsistent  in  its  several 
parts,  for  it  would  confer  a  power  upon  a  minor, 
directly  or  through  his  representative,  for  whom  an 
accumulation  is  directed,  which  it  withholds  from  all 
beneficiaries  of  trusts  to  receive  and  apply  rents  and 
profits,  even  though  they  may  be,  and  often  are,  adults 
possessed  of  discretion  and  business  ability. 

§  193.  (d)  It  is  also  inconsistent  with  the  inherent 
nature  of  a  trust  to  accumulate  generally,  that  the  in- 
terest of  the  beneficiary  should  be  transferable.  For 
such  a  trust  can  only  be  created  for  the  benefit  of  a 
minor,  and  not  for  any  other  person  or  purpose.3  But 
if  the  minor's  interest  could  be  validly  assigned,  and 
still  continue  to  exist,  the  result  would  follow  that  the 
trust,  which  would  be  void  if  not  created  for  the  sole 
benefit  of  a  designated  minor,  could  if  once  so  created 
be  continued,  if  at  all,  for  the  benefit  of  any  person 
whatsoever  to  whom  the  minor,  or  his  representative, 
might  transfer  his  right.  In  fact,  therefore,  the  result 
of  an  assignment,  if  allowable  pending  the  term,  would 
apparently  be  to  terminate  the  trust,  and  as  in  that 


1  Cochrane  v.  Schell,  140  N.  Y.  516,  532. 

5  Matter  of  Ungrich,  201  N.  Y.  415,  419;  Cochrane  v.  Schell,  140  N.  Y. 
556. 
3  Real  Prop.  L.,  §  61 ;  Ilascall  v.  King,  162  N.  Y.  134. 


116    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.  IV, 

event  the  beneficiary  would  thus  be  able  to  divest  the 
trustee's  title,  and  thereby  vest  an  absolute  fee  else- 
where, a  trust  for  accumulation  would  never  occasion  a 
suspension. 

§  194.  (e)  It  is  indeed  true  that  inalienability,  in 
the  case  of  an  express  trust,  arises  directly  not  from  the 
fact  that  a  beneficiary  cannot  transfer  his  interest,  but 
from  the  prohibition  against  alienation  by  the  trustee, 
as  holder  of  the  legal  title.  But  in  the  present  connec- 
tion that  fact  is  unimportant.  For  if  the  beneficiary  of 
such  a  trust  could  assign  his  interest,  terminate  the 
trust,  and  divest  the  trustee's  title,  it  would  only 
amount  to  saying  that  although  the  statute  renders  the 
title  non-alienable  by  the  trustee,  the  beneficiary  may 
in  effect  render  the  statutory  prohibition  futile. 

§  195.  (/)  If  the  interest  of  a  beneficiary  of  a  trust 
for  accumulation  generally  could  be  assigned,  it  would 
present  the  anomaly  of  being  wholly  assignable  by  the 
beneficiary,  and  yet  not  capable  of  being  reached  by 
his  creditors,1  in  such  cases  of  otherwise  enforceable 
claims  as  might  exist  against  an  infant.2 

§  196.  (g)  If  it  were  true  that  the  beneficiary  of  a 
trust  for  accumulation  generally  could  assign  his  in- 
terest thereunder,  it  would  be  unnecessary  to  provide 
by  statute,  as  in  Real  Property  Law,  §  62,3  that  the 
Court,  if  the  minor  is  entitled  to  the  expectant  estate, 
and  is  destitute  of  sufficient  means  of  support  and  educa- 
tion, may,  upon  the  application  of  the  guardian,  direct  a 


1  See  Bergmann  v.  Lord,  194  N.  Y.  70,  75  ;  Ullman  v.  Cameron,  186 
N.  Y.  339,  346 ;  Palmer  v.  Hallock,  94  App.  Div.  485.  See  supra,  §  62, 
note. 

2  Except  to  such  extent,  if  any,  as  might  be  affected,  in  a  given  case,  if 
Code  Civ.  Pro..  §  1391,  should  be  held  applicable.     See,  however,  Brearley 

School  v.  Ward,  201  N.  Y.  358,  362. 

3  Similar  provisions  are  found  in  Pers.  Prop.  L.,  §  17. 


§  198.]         WHAT  TRUSTS  OCCASION  SUSPENSION.  117 

suitable  sum  out  of  the  rents  and  profits  directed  to  be 
accumulated,  to  be  applied  to  the  minor's  maintenance 
or  education.  It  is  to  be  noticed  that  these  statutes 
only  contemplate  such  application,  in  cases  where  cer- 
tain specified  conditions  exist.  In  so  far  as  this  quali- 
fication exists  upon  the  power  of  the  Court  to  direct 
such  application,  it  is  hardly  to  be  supposed  that  the 
minor  himself  could  effect  such  application  irrespective 
of  whether  those  conditions  existed  or  not,  or  could 
himself,  or  by  his  guardian,  effect  the  appropriation  of 
his  interest  to  any  desired  purposes,  even  though  not 
for  support  or  education. 

§  197.  It  may  be  that  the  intended  meaning  of  the 
suggestion  that  Real  Property  Law,  §  103,  does  not  pro- 
hibit a  transfer  bv  the  beneficiarv  of  a  trust  to  accumu- 
late,  is  merely  that  the  same  prohibition  is  already  ade- 
quately provided  by  some  of  the  other  statutes  referred 
to,  and  therefore  was  omitted  from  §  103  as  unneces- 
sary. Such  a  view  of  the  matter,  while  leaving  the  law 
where  it  was  before  the  change  was  made,  does  not  seem 
to  be  indicated  by  the  Consolidators'  note,  above  re- 
ferred to. 

§  198.  For  the  foregoing  reasons,  it  is  believed  that 
the  rights  and  interests  of  beneficiaries  under  express 
trusts  to  receive  and  accumulate  rents  and  profits,  are 
not  transferable.  It  may,  therefore,  be  stated  that  as 
the  statutes  now  stand,  the  two  classes  of  real  property 
trusts  under  which  the  beneficiary  cannot  transfer  his 
rights,  are  the  same  as  those  under  which,  without 
special  additional  authority,  the  trustee  cannot  convey 
the  title,  and  accordingly  it  is  these  two  that  occasion 
suspension  of  the  absolute  power  of  alienation. 

Thus  far,  we  have  treated  the  four  classes  of  express 
trusts  as  if  the  distinction  between  them  was  entirely 
clear  cut  and  precise.     In  reality,  however,  questions 


118    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

have  from  time  to  time  arisen  concerning  the  proper 
place,  under  that  classification,  for  certain  particular 
trusts.    This  subject  will  now  be  considered. 


"  Leases  "  Under  Express  Trusts. 

§  199.  The  first  of  the  four  authorized  classes  of  ex- 
press trusts,  namely  that  covering  trusts  to  sell  real 
property  for  the  benefit  of  creditors,  does  not,  when 
considered  by  itself  alone,  warrant  any  authority  to 
the  trustee  to  lease  the  real  property.  But  under  each 
of  the  other  three  classes,  express  trusts  conferring 
upon  the  trustee  authority  to  lease,  may  be  created. 
The  second  of  these  (subdivision  2),  to  sell,  mortgage 
or  lease,  permits  such  authority  in  express  statutory 
terms,  and  under  each  of  the  other  two  trusts,  to  re- 
ceive and  apply  rents  and  profits,  or  to  receive  and 
accumulate  rents  and  profits,  the  right  to  confer  author- 
ity to  lease  is  necessarily  involved,  in  order  that  there 
may  be  rents  and  profits  to  receive.1  And  such  author- 
ity is  implied,  where  necessary,  even  though  not  ex- 
pressly conferred.  The  exact  nature  and  relation  of 
these  statutory  authorizations  to  lease,  one  expressed 
and  the  other  two  implied,  has  been  the  subject  of  much 
discussion.  In  particular,  two  important  questions 
have  received  detailed  consideration.  These  are  as  fol- 
lows :  First,  whether  an  annuity  to  be  periodically  paid 
by  the  trustee  from  rentals  currently  received  by  him 
from  a  lease  of  the  real  property,  executed  by  him,  could 
be  validly  provided  for  under  a  trust  of  the  second 
class,  "  to  sell,  mortgage  or  lease  real  property  for  the 
benefit  of  annuitants  or  other  legatees,  or  for  the  pur- 
pose of  satisfying  any  charge  thereon ;  "  2  and  Second, 

1  Corse  v.  Corse,  144  K  Y.  569. 

9  The  "words  "annuitants  or  other,"  were  not  found  in  the  earlier  statute, 
1  R.  S.  728,  §  55,  but  were  added  by  the  Real  Property  Law. 


§200.]  "  LEASES "  UNDER  EXPRESS  TRUSTS.  119 

whether  the  satisfaction  of  an  indebtedness  secured  by 
mortgage  on  real  property,  to  be  paid  off  by  the  trustee 
from  like  rentals  currently  received  by  him,  could  be 
validity  provided  for  under  a  trust  of  that  same 
class. 

§  200.  The  solution  of  each  of  these  problems  de- 
pends, at  least  in  part,  upon  the  proper  meaning  to  be 
attributed  to  the  word  "  lease  "  in  the  definition  of  the 
second  class  of  trusts.  For  if  that  class  involves  an 
authority  in  the  trustee  to  "  lease "  the  property  in 
the  technical  sense  of  the  term,  on  the  basis  of  a  current 
rental  payable  periodically  by  the  tenant  to  the  trus- 
tee, that  fact  would  support  the  theory  that  he  might 
properly  be  directed  to  apply  the  same  to  the  periodical 
payment  of  an  annuity,  because  an  annuitant  is  a  lega- 
tee, and  the  payment  of  legacies  is  mentioned  in  the 
statute  as  one  of  the  purposes  of  the  trust  to  lease,  and 
under  the  present  statute  annuities  are  also  explicitly 
referred  to;  and  it  would  also  tend  to  support  the 
theory  that  the  trustee  might  properly  be  directed  to 
use  such  current  rents  for  the  payment  of  loans  secured 
by  mortgage,  because  the  satisfaction  of  any  charge 
on  the  land  is  also  mentioned  in  the  statute  as  one  of 
the  purposes  of  the  trust  to  lease.  But  if,  on  the  con- 
trary, the  term  '*  lease,"  in  the  statute  in  question,  does 
not  refer  to  a  lease  in  the  technical  sense,  and  does  not 
authorize  the  trustee  to  lease  the  property  on  the  basis 
of  a  current  rental  payable  by  the  tenant  to  the  trustee, 
then  it  is  obvious  that  a  trust  for  the  current  applica- 
tion by  the  trustee  of  rentals  currently  received  by  him 
under  a  lease  executed  by  him,  to  the  periodical  pay- 
ment of  annuities,  or  to  the  satisfaction  of  an  indebted- 
ness secured  by  mortgage  on  the  land,  cannot  be  created 
under  subdivision  2  of  §  96.  It  happens  that  the  most 
elaborate  discussion  and  the  most  complete  disposition 


120     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.IV. 

of  the  general  question  stated,  is  to  be  found  in  a  case  1 
relating  directly  to  the  subject  of  trusts  to  lease  for  the 
purpose  of  paying  off  a  mortgage,  and  accordingly  that 
subject  will  be  first  considered,  and  then  the  reasoning 
of  the  opinion  of  the  court  on  that  point  will  be  applied 
to  the  case  of  a  trust  to  lease  for  the  purpose  of  paying 
an  annuity. 

Trust  to  Satisfy  Mortgage  from  Rents. 

§  201.  If  a  trustee  could  be  directed  to  receive  the 
rents  and  profits  of  real  property  held  by  him  in  trust, 
under  any  of  the  classes  of  express  trusts,  and  there- 
from pay  off  a  mortgage  on  real  property,  the  first  point 
to  be  noticed  is  that  an  accumulation  would  result,  for 
the  net  value  of  the  corpus  would  be  constantly  increas- 
ing as  the  mortgage  was  paid  off  from  rentals.  But 
this,  so  far  at  any  rate  as  concerns  the  first  three 
classes  of  express  trusts,  is  not,  in  itself,  one  of  the 
purposes  for  which  accumulations  are  allowed  by  Keal 
Property  Law,  §  61,2  which  authorizes  accumulations 
solely  for  the  benefit  of  minors,  and  which  also  provides 
that  all  directions  for  the  accumulation  of  the  rents 
and  profits  of  real  property,  except  such  as  are 
"  allowed  by  statute,"  shall  be  void.  In  Hascall  v. 
King,3  it  was,  however,  claimed  that  such  an  accumula- 
tion, involved  in  the  satisfaction  of  a  mortgage,  by 
using  rentals  to  pay  it  off,  is  "  allowed  by  statute,"  be- 
cause subdivision  2  of  Real  Property  Law,  §  96,  ex- 


1  Hascall  v.  King,  162  N.   Y.  134. 

2  Hafner  v.  Hafner,  62  App.  Div.  316,  aff'd  171  N.  Y.  633;  Hascall  v. 
King,  162  N.  Y.  134;  Matter  of  Jenkins,  132  App.  Div.  339;  Matter  of 
Hoyt,  71  Hun,  13;  Cowen  v.  Rinaldo,  82  Hun,  479.  See  also  Dresser  v. 
Travis,  39  Misc.  358,  aff'd  87  App.  Div.  632 ;  McComb  v.  Title  Guarantee 
&  Trust  Co.,  36  Misc.  370,  aff'd  70  App.  Div.  618;  Herzig  v.  Herzig, 
140  App.  Div.  514. 

3  162  N.  Y.  134. 


§  203.]     TRUST  TO  SATISFY  MORTGAGE  FROM  RENTS.  121 

pressly  provides  for  a  trust  "  to  lease  real  property 
*  *  *  for  the  purpose  of  satisfying  any  charge 
thereon."  But  the  court  disposed  of  that  argument  by 
holding  that  the  "  lease  "  there  referred  to  is  not  a  lease 
involving  the  current  receipt  of  rental  by  the  trustee, 
but  a  lease  in  the  nature  of  an  alienation  of  the  estate 
for  a  term,  in  consideration  of  a  lump  sum  payment  to 
the  trustee,  or  of  some  other  form  of  payment  not  in- 
volving the  receipt  by  the  trustee  of  current  rental.1 

§  202.  This  conclusion  is  derived  in  part  from  the 
fact  that  the  opposite  view  would  permit  an  accumula- 
tion in  a  form,  and  for  a  purpose  not  contemplated  by 
§  61 ;  and  in  part  from  the  fact  that  while  subdivisions 
3  and  4  of  Real  Property  Law,  §  96,  specifically  author- 
ize the  trustee  "  to  receive  rents  and  profits  of  real 
property,"  that  authorization  is  absent  in  subdivisions 
1  and  2,  thus  indicating  the  legislative  intent  that  sub- 
divisions 1  and  2  should  relate  to  trusts  to  effect  aliena- 
tion, while  subdivisions  3  and  4  should  relate  to  trusts 
to  prevent  alienation,  a  distinction  which  obviously 
exists  so  far  as  applied  to  trusts  to  sell,  or  to  mortgage. 
The  same  distinction  is  indicated  in  Real  Property 
Law,  §  103,  between  trusts  "  to  receive  rents  and  profits 
of  real  property  and  apply  them  to  the  use  of  any  per- 
son "  (including  trusts  for  accumulation,  see  §  198, 
supra),  and  "any  other  trust."2  The  trust  to  lease, 
being  classified  with  those  to  sell  or  mortgage,  is  to  be 
understood   in   the   same   sense.3 

§  203.  The  authority  to  "  lease,"  under  a  trust  of  the 
second  class,  is  to  be  construed  solelv  as  set  forth  bv 
Bionson,  J.,  in  Hairtey  v.  James,4  and   by  Presiding 


i  Hascall  v.  King,  162  N.  Y.  134. 
*  See  also  Real  Prop.  L..  §  97. 

3  Hascall  v.  King,  102  X.  Y.  134.     See  also  the  following  section. 

4  16  Wend.  61,  152-155. 


122    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

Justice  Van  Brunt,  in  Cowen  v.  Rinaldo,1  both  of  which 
cases  are  approved  by  the  Court  of  Appeals  in  Hascall 
v.  King.2  These  statements,  thus  approved,  are  as 
follows : 

In  Haioley  v.  James : 

(a)  The  trustee  of  a  trust  of  the  second  class  may 
demise  the  land  directly  to  the  creditor  at  a  nominal 
rent  for  a  period  long  enough  to  satisfy  the  debt  charged 
on  the  land  (or  to  the  legatee,  if  it  is  a  case  of  provid- 
ing for  a  legacy) ; 

(b)  Or  the  trustee  may  lease  the  land  to  a  third  per- 
son, reserving  the  rent  to  the  legatee  or  person  having 
the  charge. 

And  in  Cowen  v.  Rinaldo : 

(c)  Or  the  trustee  may  lease  the  land  for  a  given 
gross  sum  which  the  trustee  is  to  receive  for  the  benefit 
of  legatees,  or  for  the  purpose  of  satisfying  a  charge  on 
the  land. 

§  204.  Therefore,  as  the  provision  for  a  "  lease " 
under  subdivision  2  of  the  statute  does  not  warrant  a 
lease  by  the  trustee,  in  the  technical  sense,  so  as  to  en- 
title the  trustee  to  receive  current  rentals,  it  follows 
that  under  that  subdivision  he  cannot  be  directed  to 
apply  such  rentals  to  the  satisfaction  of  a  mortgage  or 
to  any  other  purpose;  and  also,  as  an  application  of 
any  current  rentals  to  the  satisfaction  of  a  mortgage 
would  necessarily  involve  an  accumulation,  it  follows 
on  that  ground  that  it  is  not  permissible  to  direct  the 
trustee  of  any  of  the  first  three  classes  of  express  trusts 
to  apply  any  rentals  to  the  satisfaction  of  a  mortgage, 
because  an  accumulation  can  be  effected  only  under 
the  fourth  class.  Whether  such  an  application  of  ren- 
tals to  the  satisfaction  of  a  mortgage  might  under  any 
circumstances  be  authorized  under    the    fourth    class 

1  82  Hun,  479,  485. 

2  162  N.  Y.  134,  148,  149. 


§  205.]  TRUST  TO  PAY  ANNUITY  FROM  RENTS.  123 

itself,  as  for  example  in  a  case  where  the  remainder 
after  the  trust,  in  the  property  itself,  from  which  the 
rentals  are  derived,  and  upon  which  the  mortgage  is  a 
lien,  is  given  absolutely  to  the  infant  beneficiary,  is  a 
question  which  has  not  been  decided.  But  inasmuch 
as,  in  case  of  the  death  of  the  infant  during  minority, 
the  land  itself  would  pass  to  his  heirs  as  real  property, 
and  the  accumulations,  being  personal  property,  to  his 
next  of  kin,  or,  if  he  had  reached  the  testamentary  age 
as  to  personal  property,  and  left  a  will,  to  his  legatees, 
or,  if  so  validly  directed  in  the  original  instrument,  to 
some  other  person,  the  validity  of  such  an  application 
of  accumulations  might  appear  to  be  at  least  doubtful, 
unless  worked  out  on  the  theory  of  a  continuing  lien  on 
the  property,  retaining  the  identity,  in  case  of  need,  of 
the  rents  thus  invested  in  satisfying  the  mortgage,  and 
viewing  them  as  still  constituting  a  distinct  fund.1 

Trust  to  Pay  Annuity  from  Rents. 

§  205.  The  principles  stated  in  the  preceding  sec- 
tions, in  so  far  as  they  relate  to  the  meaning  of  the 
term  "  lease  "  as  employed  in  the  definition  of  the  sec- 
ond class  of  trusts,  appear  to  be  directly  applicable  to 
the  case  of  an  attempted  trust  of  that  class  for  the  peri- 
odical payment  of  annuities  by  the  trustee  from  rentals 
currently  received  by  him  under  a  lease  of  the  real 
estate  executed  by  him.  For  inasmuch  as  the  term 
"  lease  "  under  subdivision  2  of  the  statute,  refers  only 
to  such  leases  as  may  be  effected  by  the  trustee  on  some 
other  basis  than  that  of  current  rental  payable  to  the 
trustee,  he  obviously  cannot,  as  such,  be  charged  with 
the  duty  of  himself  executing  a  lease  such  as  to  provide 


1  For  the  bearing  upon  this  discussion,  of  the  statute  which  renders 
authority  to  receive  rents  and  profits  essential  to  the  validity  of  devises  in 
trust,  see  §§  241-243. 


124  SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.   IV. 

him  with  current  rentals  for  the  periodical  payment  of 
annuities.1  It  is  true  that  the  court,  in  the  case  cited, 
recognized  the  force  of  the  argument  in  favor  of  con- 
struing the  term  "  lease,"  in  subdivision  2,  in  its  techni- 
cal sense,  as  a  contract  for  the  possession  and  profits 
of  lands  and  tenements  on  the  one  side  and  a  recom- 
pense of  rent  or  other  income  on  the  other,  and  said 
that  "  It  must  be  conceded  that  if  there  were  no  other 
provision  of  the  statute  bearing  directly  or  indirectly 
upon  the  subject  of  the  receipt  of  rents  and  profits  of 
lands  and  their  accumulation  than  is  to  be  found  in 
subdivision  2,  the  argument  to  which  I  have  referred 
could  not  well  be  met." 

§  206.  One  such  "  other  provision "  was  however 
found  by  the  court  in  the  statute  relating  to  accumula- 
tions, which  would,  by  itself,  have  no  bearing  on  the 
question  of  a  lease  under  subdivision  2  for  the  purpose 
of  paying  annuities,  except  that  it  is  to  be  assumed  that 
if  the  word  "  lease  "  as  there  used  has  a  specific  mean- 
ing in  one  connection  it  has  the  same  meaning  in  other 
connections.  But  additional  "  other  provisions  "  were 
also  found  in  the  fact  that  the  authorization  to  lease 
lands  for  the  benefit  of  legatees,  or  for  the  purpose  of 
satisfying  any  charge  thereon,  "  is  found  in  a  subdivi- 
sion which  is  in  all  other  respects  (and  I  think  in  re- 
spect to  leasing  as  well)  a  provision  for  alienation,  and 
not  for  the  suspension  of  the  power  of  alienation,"  and 
in  the  fact  that  subdivisions  3  and  4  specifically  author- 
ize the  receipt  of  rents  and  profits,  while  subdivision  2 
omits  any  such  specific  authorization.  These  addi- 
tional "  other  provisions  "  thus  relied  on  by  the  court, 
apply  to  leases  for  the  payment  of  annuities  with  the 
same  force  as  to  leases  for  the  satisfaction  of  mortgages. 


1  Hascall  v.  King,  162  N.  Y.  134. 


I 


§  208.]        TRUST  TO  PAY  ANNUITY  FROM  RENTS.  125 

§  207.  Accordingly,  the  opinion  in  Hascall  v.  King  x 
appears  to  establish  also  the  proposition  that  it  is  not 
competent,  under  subdivision  2,  to  provide  for  the  peri- 
odical payment  of  annuities  by  the  trustee  from  rents 
and  profits  to  be  currently  payable  to  him  as  landlord 
by  a  tenant  under  a  lease  from  the  trustee.  And  the 
conclusion  that  an  express  trust  to  pay  annuities  gen- 
erally from  rents  and  profits  to  be  received  and  applied 
by  the  trustee,  may,  and  can  only,  be  provided  for 
under  subdivision  3  of  §  96,  covering  trusts  to  receive 
and  apply  rents  and  profits,  is  supported  by  a  number 
of  other  cases.2  Annuities  payable  generally  from  rents 
and  profits  under  a  trust  of  the  third  class,  do  not  con- 
stitute "  sums  in  gross  "  which,  under  the  phraseology 
of  1  R.  S.  730,  §  63,  were  assignable  by  the  beneficiary, 
and  accordingly  they  were  not  assignable  by  him;  and 
a  trust  for  payment  of  annuities  under  the  third  class, 
effects  a  suspension  of  the  power  of  alienation.3 

§  208.  Attention  should  be  called  to  the  case  of  Rad- 
Icy  v.  Kuhn,4  involving  a  trust  to  receive  rents  and  pay 
therefrom  a  single  specified  sum  to  each  of  two  speci- 
fied minors,  at  majority.  The  court  say  that  on  either 
of  several  theories  it  could  be  held  that  this  involved 
no  suspension,  and  among  other  things  say  that  it 
might  be  regarded  as  a  trust  to  lease  lands  for  the  bene- 
fit of  legatees.    A  number  of  cases  involving  considera- 


1  162  N.  Y.  134. 

2  Cochrane  v.  Schell,  140  N.  Y.  516;  Brown  v.  Quintard,  177  N.  Y.  75; 
Corse  v.  Corse,  144  N.  Y.  569;  Herzog  v.  Title  Guarantee  &  Trust  Co. , 
177  N.  Y.  86;  Robb  v.  Washington  and  Jefferson  College,  185  K  Y.  485; 
Rothschild  v.  Roux,  78  App.  Div.  282. 

3  Cochrane  v.  Schell,  140  N.  Y.  516,  535 ;  Brown  v.  Quintard,  177  N.  Y. 
75;  Herzog  v.  Title  Guarantee  &  Trust  Co.,  177  N.  Y.  86;  Robb  v.  Wash- 
ington and  Jefferson  College,  1S5  N.  Y.  485  ;  Rothschild  v.  Roux,  78  App. 
Div.  282. 

4  97  N.  Y.  27. 


126    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

tion  of  the  subject  here  discussed,  are  cited  for  refer- 
ence.1 

§  209.  But  it  does  not  follow  from  the  foregoing  that 
annuities  cannot  also  be  provided  for  in  still  other 
ways.  Even  under  subdivision  2  of  the  statute,  it  is 
competent  to  provide  for  the  payment  of  annuities,  not 
through  the  receipt  of  rents  and  profits  by  the  trustee 
under  a  lease  made  by  him,  but  through  the  methods 
enumerated  by  Judge  Bronson  and  by  Presiding  Jus- 
tice Van  Brunt,  as  set  forth  above.  And  the  fact  that 
this  can  be  done,  sufficiently  explains  the  appearance  in 
subdivision  2  of  the  statute,  of  the  specific  reference  to 
annuities,  an  insertion  no  doubt  intended  merely  to 
quiet  any  question  as  to  the  inclusion  of  annuities 
within  the  term  "  legacies."  And  the  Commissioners  of 
Revision  state  that  this  subdivision  as  thus  amended,  is 
"  unchanged  in  substance."  Also,  annuities  may  be 
provided  for  by  a  charge  upon  real  or  personal  prop- 
erty, without  the  necessity  for  any  trust  or  power  what- 
ever, or  may  be  made  payable  through  a  power  in 
trust,2  in  any  of  which  cases  they  are  transferable  by 


1  Hawley  v.  James,  16  TVend.  61, 117, 194  (explained  in  Hascall  v.  King, 
162  K  Y.  134,  149) ;  Parks  v.  Parks,  9  Pai.  Ch.  107  and  127  (disapproved 
in  Hascall  v.  King,  supra) ;  Cowen  v.  Rinaldo,  82  Hun,  479  (approved  in. 
Hascall  v.  King,  supra) ;  Becker  v.  Becker,  13  App.  Div.  342  (disapproved 
in  Hascall  v.  King,  supra) ;  Lang  v.  Ropke,  5  Sandf.  363  and  Griffen  v. 
Ford,  1  Bosw.  123, 142  (both  disapproved  in  Cochrane  v.  Schell,  140  N.  Y. 
516,  528-9);  Hunter  v.  Hunter,  17  Barb.  25,  92;  Gottv.  Cook,  7  Pai.  521, 
535 ;  McGowan  v.  McGowan,  2  Duer,  57 ;  Johnson  v.  Cornwall,  26  Hun- 
499,  aff'd  91  N.  Y.  660;  Killam  v.  Allen,  52  Barb.  605;  DeGraw  v.  Clason, 
11  Pai.  136;  Bradhurst  v.  Bradhurst,  1  Pai.  331,  346;  Clute  v.  Bool,  8  Pai. 
83  (approved  in  Cochrane  v.  Schell,  140  N.Y.  516,  529);  Stewartv.  McMartin, 
5  Barb.  438 ;  Coster  v.  Lorillard,  14  Wend.  265 ;  McSorley  v.  Wilson,  4 
Sandf.  Ch.  515  (approved  in  Cochrane  v.  Schell,  140  N.  Y.  516,  531.) 

2  Cochrane  v.  Schell,  140  N.  Y.  516,  532;  Buchanan  v.  Little,  154  N.  Y. 
147;  Robb  v.   Washington  &  Jefferson  College,  185  N.  Y.  485;  People's 
Trust  Co.  v.  Flynn,  188  N.   Y.  385;  Kinkele  v.  Wilson,  151  N.  Y.  269 
Matter  of  Collins,   144  N.  Y.    522;  Redfield  v.   Redfield,  126  K  Y.  466 
Horstman  v.  Flege,  172  K  Y.  381 ;  Dunham  v.  Deraismes,  165  N.  Y.  65 


§213.]  THE  "STATUTORY  PERIOD."  127 

the  beneficiary,1  and  occasion  no  suspension.2 

§  210.  Although  the  general  subject  of  the  "  statu- 
tory period  "  permitted  for  suspension  of  the  power  of 
alienation  was  treated  in  Chapter  II,  the  detailed  dis- 
cussion of  such  features  as  relate  only  to  express  trusts 
was  deferred,  and  will  now  be  taken  up. 

The  "  Statutory  Period  "  for  Trusts  to  Accumulate  Rents. 

§  211.  The  period  during  which  a  suspension  of  the 
absolute  power  of  alienation  of  real  property,  occa- 
sioned by  an  express  trust  to  receive  and  accumulate 
rents  and  profits,  may  be  limited  to  continue,  is  specif- 
ically provided  for  by  statute.  The  statutory  provi- 
sions are  as  follows: 

§  212.  "  An  express  trust  may  be  created  for  one  or 
more  of  the  following  purposes :     *     *     * 

"  4.  To  receive  the  rents  and  profits  of  real  property, 
and  to  accumulate  the  same  for  the  purposes,  and 
within  the  limits,  prescribed  by  law."  3 

§  213.  "  All  directions  for  the  accumulation  of  the 


Bliven  v.  Seymour,  88  K  Y.  469,  479;  Gilbert  v.  Taylor,  148  K  Y.  298; 
Matthews  v.  Studley,  17  App.  Div.  803,  aff'd  161  N.  Y.  633;  Maurice  v. 
Graham,  8  Pai.  483;  Mason  v.  Jones,  2  Barb.  229,  247,  aff'd  see  3  N.  Y. 
375,  and  see  2  N.  Y.  327-8.  As  a  general  rule,  the  bequest  of  the  annual 
interest  on  a  specified  sum  is  not  to  be  considered  as  an  annuity,  consisting 
of  any  annual  fixed  amount,  but  merely  as  a  gift  of  such  interest  as  the 
specified  sum  earns,  Matter  of  Dewey,  153  N.  Y.  63. 

1  Cases  above  cited. 

2  Roosevelt  v.  Porter,  36  Misc.  441,  447. 

Bequest  of  future  annuities  with  cross-remainders  in  case  of  the  annui- 
tant's death  during  a  preceding  estate,  illustrated,  Matter  of  Roosevelt,  143 
N.  Y.  120.  Attention  is  again  directed  to  the  fact  that  certain  decisions 
appear  to  recognize  the  right  of  a  trustee  under  the  second  class  of  trusts 
to  receive  rents  and  profits  under  certain  circumstances  and  that  what  is 
believed  to  be  the  true  theory  of  these  decisions  is  discussed  in  §§  241-243, 
infra. 

8  Real  Prop.  L.,  §96. 


128    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.  IV. 

rents  and  profits  of  real  property,  except  such  as  are 
allowed  by  statute,  shall  be  void.  An  accumulation  of 
rents  and  profits  of  real  property,  for  the  benefit  of  one 
or  more  persons,  may  be  directed  by  any  will  or  deed 
sufficient  to  pass  real  property,  as  follows : 

"  1.  If  such  accumulation  be  directed  to  commence 
on  the  creation  of  the  estate  out  of  which  the  rents  and 
profits  are  to  arise,  it  must  be  made  for  the  benefit  of 
one  or  more  minors  then  in  being,  and  terminate  at  or 
before  the  expiration  of  their  minority. 

"  2.  If  such  accumulation  be  directed  to  commence  at 
any  time  subsequent  to  the  creation  of  the  estate  out  of 
which  the  rents  and  profits  are  to  arise,  it  must  com- 
mence within  the  time  permitted,  by  the  provision  of 
this  article,  for  the  vesting  of  future  estates,  and  during 
the  minority  of  the  beneficiaries,  and  shall  terminate  at 
or  before  the  expiration  of  such  minority. 

"  3.  If  in  either  case,  hereinbefore  provided  for,  such 
direction  be  for  a  longer  term  than  during  the  minority 
of  the  beneficiaries,  it  shall  be  void  only  as  to  the  time 
beyond  such  minority."  1 

§  214.  Every  accumulation  must  be  for  the  sole  bene- 
fit of  an  infant ; 2  may  be  implied  as  well  as  expressed,3 


1  Real  Prop.  L.,  §  61. 

Anticipation  of  directed  accumulations.  Id.,  §  62.  Undisposed-of 
profits,  Id.,  §  63,  and  infra  §244. 

3  Pray  v.  Hegeman,  92  K  Y.  508,  513,  516,  517,  519;  Barbour  v. 
DeForest,  95  N.  Y.  13  ;  Harris  v.  Clark,  7  N.  Y.  242 ;  Manice  v.  Manice, 
43  N.  Y.  303;  McCormack  v.  McCormack,  60  How.  Pr.  196;  Craig  v. 
Craig,  3  Barb.  Ch.  76,  92  (compare  Titus  v.  "Weeks,  37  Barb.  136);  Matter 
of  Hayden,  77  Hun,  219 ;  Boynton  v.  Hoyt,  1  Den.  53 ;  Cook  v.  Lowry, 
95  N.  Y.  103,  107;  Hull  v.  Hull,  24  N.  Y.  647;  Matter  of  Rogers,  22 
App.  Div.  428,  431,  aff'd  161  N.  Y.  108,  except  where  otherwise  expressly 
provided  by  some  statute;  e.  g.  the  final  paragraphs  of  Pers.  Prop.  L., 
§16,  and  of  Real  Prop.  L.,  §  61,  relating  to  accumulations  for  charities. 
See  as  to  Michigan,  Toms  v.  Williams,  41  Mich.  552,  569 ;  Wilson  v.  Odell, 
58  Mich.  533. 

3  St.  John  v.  Andrews  Institute,  191  N.  Y.  254,  278;  Cochrane  v.  Schell, 


§  215.]  THE  "  STATUTORY  PERIOD."  129 

and  is  strictly  prohibited  in  any  form  whatever,  except 
for  the  purposes  and  during  the  period  prescribed  by 
statute.1 


§  215.  The  beginning,  duration  and  termination  of 
trusts  for  accumulation,  are  affected  both  by  the  gen- 
eral provisions  of  Real  Prop.  L.,  §  42,  under  which  their 
term  must  be  measured  strictly  by  two  lives  in  being, 
except  in  the  one  case  there  provided  for  relating  to  a 
further  minority;  and  by  the  special  provisions  of  §  61, 
just  quoted.  Within  these  limits  they  may  be  directed 
to  commence  either  on  the  creation  of  the  estate,  or  sub- 


140  N.  Y.  516,  527  (compare  Hendricks  v.  Hendricks,  3  App.Div.  604, 
aff'd  154  N.  Y.  751);  Hawley  v.  James,  16  Wend.  61,  162;  Phelps'  Ex- 
ecutor v.  Pond,  23  N.  Y.  69,  80;  Gilman  v.  Healy,  1  Dem.  404,  407;  as  to 
personal  property,  Bean  v.  Bowen,  47  How.  Pr.  306.  But  see  Horton  v. 
Cantwell,  108  N.  Y.  255;  Manice  v.  Manice,  43  N.  Y.  303,  384. 

i  Hafner  v.  Hafner,  62  App.  Div.  316,  aff'd  171  K  Y.  633 ;  Hascall  v. 
King,  162  N.  Y.  134;  Matter  of  Hoyt,  71  Hun,  13;  Cowen  v.  Rinaldo,  82 
Hun,  479 ;  Thorn  v.  de  Breteuil,  179  N.  Y.  64  ;  Matter  of  Slocum,  169 
N.  Y.  153,  159;  McGuire  v.  McGuire,  80  App.  Div.  63;  Spencer  v. 
Spencer,  38  App.  Div.  403;  Matter  of  Keogh,  112  App.  Div.  414,  aff'd  186 
N.  Y.  544;  U.  S.  Trust  Co.  v.  Soher,  178  N.  Y.  442;  Matter  of  Jenkins, 
132  App.  Div.  339;  Dresser  v.  Travis,  39  Misc.  358,  aff'd  87  App.  Div. 
632;  McComb  v.  Title  Guarantee  and  Trust  Co.,  36  Misc.  370,  aff'd  70 
App.  Div.  618;  Matter  of  Nesmith,  140  N.  Y.  609,  614;  N.  Y.  L.  I.  &  T. 
Co.  v.  Kane,  17  App.  Div.  542;  Haug  v.  Schumacher,  166  K  Y.  506,  516; 
Matter  of  Harteau,  125  App.  Div.  710,  appeal  dismissed,  196  N.  Y.  513. 
But  a  direction  to  add  to  the  principal  of  the  trust  estate,  royalties  on  ore 
to  be  excavated  from  the  lands  held  in  trust,  does  not  fall  within  the 
provision  of  the  statute  concerning  accumulation  of  rents.  The  royalties 
are  equivalent  to  a  price  received  for  portions  of  the  corpus.  Palms  v. 
Palms,  68  Mich.  355.  And  it  does  not  constitute  accumulation  to  retain 
and  apply  the  interest  to  make  good  a  depletion  of  the  original  capital 
occasioned  by  an  anticipatory  payment  of  a  future  interest,  or  by  a 
premium  on  bonds  purchased  for  investment,  or  for  like  purposes,  see 
Livingston  v.  Tucker,  107  N.  Y.  549,  552 ;  Craig  v.  Craig,  3  Barb.  Ch.  76, 
92 ;  Matter  of  Stevens,  187  N.  Y.  471  and  cases  cited ;  Matter  of  Nesmith, 
140  N.  Y.  609;  Dexter  v.  Watson,  54  Misc.  484.  See  also  Spencer  v. 
Spencer,  38  App.  Div.  403.  A  merely  incidental  void  provision  for  accu- 
mulation may  be  cut  out,  without  disturbing  the  rest  of  the  scheme. 
Endress  v.  Willey,  122  App.  Div.  110,  aff'd  197  N.  Y.  541. 


130    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

sequ  entry.  In  either  event  they  must  commence  during 
the  minority  of  the  beneficiaries.1  In  order  that  they 
may  be  directed  to  commence  upon  the  creation  of  the 
estate,  under  subdivision  1  of  §  61,  the  minor  for  whose 
benefit  the  accumulation  is  directed  must  be  then  in 
being.2  An  infant  en  ventre  sa  mere  at  the  creation  of 
the  estate,  is  to  be  regarded  as  a  person  in  being.3 
Trusts  to  commence  subsequent  to  the  creation  of  the 
estate,  under  subdivision  2  of  §  61,  must  be  directed  to 
commence  within  the  time  permitted  for  the  vesting  of 
future  estates,  and  while  in  that  case  it  is  not  requisite 
that  the  minor  should  be  in  being  at  the  creation  of  the 
estate,4  it  is  essential,  in  order  that  the  trust  may  be- 
come operative  at  the  time  fixed  for  its  commencement, 
that  the  minor  shall  then  be  in  being.5  And  an  accumu- 
lation can  never  begin  prior  to  the  birth  of  the  minor 
for  whose  benefit  it  is  directed.6 

§  216.  The  statutory  provision  that  an  accumulation 
of  the  rents  and  profits  of  real  property,  directed  to 
commence  subsequent  to  the  creation  of  the  estate, 
must  commence  within  the  time  permitted  for  the  vest- 
ing of  future  estates,  means  that  it  may  commence 
either  during  the  term  of  two  designated  lives  in  being 
(and  either  at  or  subsequent  to  the  birth  of  the  in- 
fant),7 or  at  the  end,  or  immediately  upon  the  termina- 
tion of  two  such  lives,  and  then  continue  through  the 


1  U.  S.  Trust  Co.  v.  Soher,  178  N.  Y.  442. 

2  Cochrane  v.  Schell,  140  N.  Y.  516,  527-8. 

3  See  §  56,  supra. 

4  U.  S.  Trust  Co  v.  Soher,  178  N.  Y.  442;  Mason  v.  Mason's  Ex'rs,  2 
Sandf.  Ch.  432,  aff'd.  2  Barb.  229  ;  Manice  v.  Manice,  43  N.  Y.  303,  376. 

5  Manice  v.  Manice,  43  N.  Y.  303,  376;  Kilpatrick  v.  Johnson,  15  N.  Y. 
322,  325. 

6  U.  S.  Trust  Co.  v.  Soher,  178  N.  Y.  442;  Matter  of  Keogh,  112  App. 
Div.  414,  aff'd  186  N.  Y.  544;  Manice  v.  Manice,  43  N.  Y.  303,  376;  Hax- 
tun  v.  Corse,  2  Barb.  Ch.  506,  518 ;  Kilpatrick  v.  Johnson,  15  N.  Y.  322. 
Compare  Haug  v.  Schumacher,  166  N.  Y.  506,  516. 

1  Mason  v.  Mason's  Ex'rs,  2  Sandf.  Ch.  432,  476-7. 


§  218.]  THE  "STATUTORY  PERIOD."  131 

minority  of  the  infant.1  The  fact  that  for  the  period 
of  the  trust  for  accumulation,  the  title  is  necessarily 
vested  not  in  the  minor  but  in  the  trustee,  for  the 
minor's  benefit,  does  not  interfere  with  the  applica- 
bility of  Real  Property  Law,  §  42.2  When  the  minor 
reaches  majority  the  accumulation,  irrespective  of 
whether  it  was  directed  to  commence  on  or  subsequent 
to  the   creation  of  the  estate,  must  cease.3 

§  217.  It  is  not  allowable  to  direct  its  continuance 
for  a  fixed  term  not  measured  by  minority ; 4  or  for  a 
term  not  measured  at  all ; 5  or  for  several  lives.6  But 
if  the  direction  is  for  a  longer  term  than  a  minority,  it 
is  void  only  for  the  excess.7  Within  the  limit  of  the 
"  statutory  period,"  there  are  opportunities  presented 
for  successive  accumulations.8 

§  218.  When  the  minor  reaches  majority,  the  accu- 
mulated fund  belongs  to  him.9    During  minority  it  vests 


i  Manice  v.  Manice,  43  N.  Y.  303. 

2  Manice  v.  Manice,  43  N.  Y.  303,  377,  381. 

3  Real  Prop.  L.,  §  109  and  §61;  Goebel  v.  Wolf,  113  N.  Y.  405,  415; 
Bryan  v.  Knickerbacker,  1  Barb.  Ch.  409 ;  Cook  v.  Lowry,  95  N.  Y.  103 ; 
Matter  of  Dey  Ermand,  24  Hun,  1 ;  McCormack  v.  McCormack,  60  How. 
Pr.  196;  King  v.  Rundle,  15  Barb.  139,  145;  Williams  v.  Williams,  8  N.  Y. 
525;  Simpson  v.  English,  1  Hun,  559;  Matter  of  Hoyt,  32  State  Rep. 
787;  Kalish  v.  Kalish,  166  N.  Y.  368,  373;  Matter  of  Hayden,  77  Hun,  219; 
Tweddell  v.  N.  Y.  Life  Ins.  &  Trust  Co.,  82  Hun,  602;  see  Haug  v. 
Schumacher,  166  N.  Y.  506,  518. 

4  Rice  v.  Barrett,  102  N.  Y.  161. 
6  Yates  v.  Yates,  9  Barb.  324. 

6  Hobson  v.  Hale,  95  N.  Y.  588 ;  Harris  v.  Clark,  7  N.  Y.  244. 

7 Real  Prop.  L.,  §61.  Hull  v.  Hull,  24  N.  Y.  647,  650;  Radley  v.  Kuhn, 
97  X.  Y.  26,  32 ;  Gilman  v.  Reddington,  24  N.  Y.  9,  19.  See  also  Tobin 
v.  Graf,  39  Misc.  412. 

8  Mason  v.  Mason's  Ex'rs,  2  Sandf.  Ch.  432,  475;  Forsyth  v.  Rathbone, 
34  Barb.  388.  See  Ruppert's  Estate,  Tucker,  480 ;  Brown  v.  Quintard, 
177  N.  Y.  75. 

9  Tweddell  v.  N.  Y  Life  Ins.  &  Trust  Co.,  82  Hun,  602;  Gilman  v. 
Healy,  t  Pern.  404;  Pray  v.  Hegeman.  92  X.  Y.  508;  Barbour  v.  DeForest, 
95  N.  Y.  13;  see  also  Cochrane  v.  Alexander,  56  Misc.  212. 


132     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

in  him  as  it  accrues,  subject  to  the  trust  during  minor- 
ity, and  is  not  divested  by  his  death  under  age,  but 
goes  to  his  next  of  kin  as  such,  except  in  so  far  as  the 
trust  instrument  may  have  validly  provided,  that  in 
that  case  it  shall  pass  to  others.1 

§  219.  It  seems  that  there  is  a  limit  beyond  which 
the  doctrine  forbidding  accumulations  cannot  be  car- 
ried. "  We  do  not  suppose  that  the  very  day  income  is 
received  it  must  be  paid  over  to,  or  distributed  among 
the  beneficiaries,  and  that  no  amount  can  be  retained 
for  any  time,  however  short,  with  which  to  pay  a  charge 
certain  to  accrue  in  the  immediate  future."  2 

§  220.  In  the  case  of  personal  property,  the  statute 
provides  that  "  an  accumulation  of  the  income  of  per- 
sonal property,  directed  by  any  instrument  sufficient  in 
law  to  pass  such  property  is  valid:  1.  If  directed  to 
commence  from  the  date  of  the  instrument,  or  the  death 
of  the  person  executing  the  same,  and  to  be  made  for 
the  benefit  of  one  or  more  minors,  then  in  being,  or  in 
being  at  such  death,  and  to  terminate  at  or  before  the 
expiration  of  their  minority.  2.  If  directed  to  com- 
mence at  any  period  subsequent  to  the  date  of  the  in- 
strument or  subsequent  to  the  death  of  the  person  exe- 
cuting it,  and  directed  to  commence  within  the  time 
allowed  for  the  suspension  of  the  absolute  ownership 
of  personal  property,  and  at  some  time  during  the  min- 
ority of  the  persons  for  whose  benefit  it  is  intended,  and 
to  terminate  at  or  before  the  expiration  of  their  minor- 


1  Smith  v.  Parsons,  146  N.  Y.  116;  Matter  of  Keogh,  112  App.  Div. 
414,  418,  aff'd  186  N.  Y.  544;  Matter  of  Ranken,  101  App.  Div.  189, 
aff'd  182  N.  Y.  519;  Manice  v.  Manice,  43  N.  Y.  303,  375,  379;  Draper 
v.  Palmer,  27  N.  Y.  State  Rep.  510;  Bolton  v.  Jacks,  6  Robt.  166, 
230;  Willetts  v.  Titus,  14  Hun,  554;  Gilman  v.  Healy,  1  Dem.  404,  408; 
Goebel  v.  Wolf,  113  N.  Y.  405,  415;  Roe  v.  Vingut,  117  N.  Y.  204,  217; 
Chaplin,  Express  Trusts  and  Powers,  §  411;  8  Columbia  Law  Rev.,  298. 

2  Cullen,  J.,  in  Spencer  v.  Spencer,  38  App.  Div.  403.     §  191  supra. 


§223.]  THE  "STATUTORY  PERIOD."  133 

ity.  3.  All  other  directions  for  the  accumulation  of 
the  income  of  personal  property,  not  authorized  by  stat- 
ute, are  void.  In  either  case  mentioned  in  subdivi- 
sions one  and  two  of  this  section  a  direction  for  any 
such  accumulation  for  a  longer  term  than  the  minority 
of  the  persons  intended  to  be  benefited  thereby,  has  the 
same  effect  as  if  limited  to  the  minority  of  such  persons, 
and  is  void  as  respects  the  time  beyond  such  minor- 
ity." ! 

§  221.  In  the  case  of  personal  property,  after  the  end 
of  the  two  lives  has  been  reached,  there  is  no  further 
opportunity  (as  there  may  be  in  the  case  of  real  prop- 
erty) for  suspension,  and  consequently  none  for  accu- 
mulation. It  necessarily  follows,  therefore,  that  a 
trust  for  accumulation,  in  order  to  secure  any  leeway 
to  effect  its  purpose,  must  begin  within  the  term  of 
suspension,  and  may  then  run  on  until  either  the  major- 
ity, or  death  during  minority,  of  the  infant,  or  the 
earlier  termination  of  the  two  lives.2 

The  "  Statutory  Period  "  for  Trusts  to  Apply  Rents. 

§  222.  That  express  trusts  of  the  "third  class,"  to 
receive  and  apply  rents  and  profits,  occasion  a  suspen- 
sion of  the  absolute  power  of  alienation,  is  clear  and 
undisputed.  That  the  permissible  term  of  a  suspension 
thus  occasioned  was,  under  the  Revised  Statutes,  re- 
stricted to  the  "  statutory  period,"  is  equally  well 
settled.  But  a  change  in  the  statute,  effected  by  the 
enactment  of  the  Real  Property  Law,  makes  it  neces- 
sary to  consider  the  question  whether  this  restriction, 
or  any  restriction  of  term,  now  applies  to  such  trusts. 

§  223.  Under  the  Revised  Statutes,  there  were  three 


1  Pers.  Prop.  L.,  §  lfi.     Anticipation  of  directed  accumulation,  Id.  §  17. 
*  Manice  v.  Manice,  43  N.  Y.  303,  381. 


134     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

sections,  1  R.  S.  723,  §§  14,  15  and  16,  which  so  far  as 
now  retained  are  embodied  in  Real  Property  Law, 
§  42.  Section  16  need  not  be  here  considered.  Section 
14,  in  addition  to  furnishing  the  mere  definition  of  sus- 
pension which  is  still  found  in  the  present  statute,  pro- 
vided that,  u  Every  future  estate  shall  be  void  in  its 
creation,  which  shall  suspend  the  absolute  power  of 
alienation  for  a  longer  period  than  is  prescribed  in  this 
Article."  And  section  15  contained  the  following  gen- 
eral and  sweeping  prohibition :  "  The  absolute  power  of 
alienation  shall  not  be  suspended  by  any  limitation  or 
condition  whatever ;  for  a  longer  period  than  during  the 
continuance  of  not  more  than  two  lives  in  being  at  the 
creation  of  the  estate,  *  *  *  ."  This  latter  sec- 
tion, which  for  convenience  of  reference  in  the  present 
discussion  we  may  call  the  "  general  suspension  clause," 
was  often  cited  by  the  courts  as  sufficient  support  for 
their  holding  that  the  permissible  term  of  present  es- 
tates held  in  trust  for  the  receipt  and  application  of 
rents  and  profits,  was  restricted  to  the  statutory 
period.1 

§  224.  But  in  the  enactment  of  the  Real  Property 
Law,  L.  1S06,  Ch.  547,  this  general  suspension  clause 
was  omitted,  and  has  not  as  yet  been  restored,  Real 
Prop.  L.,  §  42,  and  its  reference  to  "  any  limitation  or 
condition  "  was  transferred  to  the  provision  relating  to 
future  estates,  which  now  reads  as  follows: 
"  Every  future  estate  shall  be  void  in  its  creation, 
which  shall  suspend  the  absolute  power  of  alienation, 
by  any  limitation  or  condition  whatever,  for  a  longer 
period,"  etc.,  thus  leaving  the  provision  in  a  form  which 
seems,  on  its  face,  to  restrict  the  term  of  only  such  sus- 
pension as  may  be  occasioned  by  the  limitation  of  future 


1  Bailey  v.  Bailey,  97  N.  Y.  460,  468 ;  Crooke  v.   County  of  Kings,  97 
N.  Y.  421,  439. 


§  227.]  THE  "STATUTORY  PERIOD."  135 

estates,  including  future  estates  in  trust,  and  to  omit 
any  restriction  upon  the  term  of  suspension  occasioned 
by  present  estates  in  trust,  created  to  vest  in  possession 
in  the  trustee  immediately  upon  their  creation. 

§  225.  So  far  as  concerns  express  trusts  for  the  re- 
ceipt and  accumulation  of  rents  and  profits,  the  maxi- 
mum term  of  possible  suspension  is  fixed,  by  virtue  of 
the  terms  of  Real  Property  Law,  §§61  and  90,  at  two 
lives  in  being  and  in  certain  cases  a  further  minority. 
But  as  to  present  express  trusts  for  the  receipt  and 
application  of  rents  and  profits,  it  still  remains  to  con- 
sider the  effect  of  the  omission  from  Real  Property 
Law,  §  42,  of  the  general  prohibition  above  mentioned. 

§  226.  The  Consolidators'  Notes,  in  referring  1  to  this 
omission,  state  that  "  A  trust  estate,  in  the  case  of  an 
executed  trust,  is  always  a  present  estate,  and  not  a 
future  estate,  and  although  it  may  offend  against  the 
spirit  of  the  rule  against  perpetuities  there  is  no  pro- 
vision now  on  the  statute  books  avoiding  it  *  *  *. 
The  profession  has  been  anxiously  expecting  some  case 
which  would  involve  this  omission.  The  courts  would 
possibly  rectify  it  by  a  violent  assumption,  deciding  that 
no  change  in  the  Revised  Statutes  was  intended."  It  is 
believed,  however,  that  several  sufficient  grounds  now 
exist  for  the  opinion  that  the  unfortunate  omission  of 
the  clause  in  question  has  effected  no  change  in  the  law. 
These  are  as  follows : 

§  227.  (1)  It  has  been  noticed  that  Real  Property 
Law,  §  42,  still  restricts  within  the  statutory  period,  a 
suspension  occasioned  by  future  estates,  and  the  diffi- 
culty under  consideration  is  due  to  the  assumed  ab- 
sence of  any  similar  restriction  in  relation  to  present 


1  Consolidated  Laws,  Birdseye's  Ed.,  Vol.  IV.  p.  4940;    Wadhams'  Ed., 
Vol.  VI,  p.  519  of  Notes. 


136    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.   [CH.  IV. 

estates  in  trust  to  receive  and  apply  rents  and  profits. 
But  upon  turning  to  Real  Property  Law,  §  60,  formerly 
1  E.  S.  725,  sec.  36,  Ave  find  the  following: 

§  228.  "  A  disposition  of  the  rents  and  profits  of  real 
property  to  accrue  and  be  received  at  any  time  subse- 
quent to  the  execution  of  the  instrument  creating  such 
disposition,  shall  be  governed  by  the  rules  established 
in  this  article  [which  includes  §  42]  for  future  estates 
in  real  property." 

§  229.  As  §  60  thus  incorporates  §  42,  they  may,  so 
far  as  concerns  their  relation  to  the  question  under 
discussion,  be  read  as  if  stated  in  the  form  of  one  sec- 
tion as  follows :  "  Every  future  estate,  and  every  dispo- 
sition of  rents  and  profits  of  real  property  to  accrue 
and  be  received  at  any  time  subsequent  to  the  execution 
of  the  instrument  creating  such  disposition,  shall  be 
void  in  its  creation,  which  shall  suspend  the  absolute 
power  of  alienation,  by  any  limitation  or  condition 
whatever,  for  a  longer  period  than  two  lives  in  being," 
etc.1 

§  230.  Section  60,  therefore,  renders  applicable  to 
present  express  trusts  to  receive  and  apply  rents  and 
profits,  the  same  limitation  upon  the  permissible  term 
of  suspension,  that  is  applicable  to  future  estates.  In- 
deed, this  proposition  is  so  clear,  that  it  appears  en- 
tirely probable  that  it  constituted  the  reason  which  the* 


1  In  view  of  the  arguments  here  adduced,  it  is  probably  not  necessary  to 
draw  into  this  discussion  an  intimation,  in  Cochrane  v.  Schell,  140  N.  Y. 
516,  538-9,  that  a  reference  in  another  statute,  on  a  different  subject,  to 
expectant  estates,  apparently  ^vas  not  intended  to  include  present  trusts. 
The  point  is  different.  It  is  not  here  a  question  of  classifying  a  present 
trust  as  a  future  estate.  The  statute  here  under  consideration  merely  says 
that  certain  dispositions  shall  be  governed  by  the  rules  established  for  future 
estates. 


§230.]  THE  "  STATUTORY  PERIOD."  137 

Commissioners  of  Statutory  Revision  considered  suffi- 
cient to  warrant  the  omission  of  the  general  suspension 
clause  from  the  Real  Property  Law,  on  the  theory  that 
the  matter  was  adequately  covered  by  other  statutory 
provisions.  That  such  is  the  effect  of  Real  Property 
Law,  §  60,  was  long  ago  firmly  established.  For  not 
only  was  it  early  settled,  under  the  Revised  Statutes, 
that  the  provisions  of  section  14  (which,  so  far  as  its 
own  express  terms  went,  did  not  refer,  any  more  than 
section  42  of  the  Real  Property  Law  does  now,  to  any- 
thing but  future  estates),  applied  as  well  to  present  as 
to  future  estates,  and  also  to  trust  estates  as  well  as  to 
estates  not  in  trust,  but  also  that  §  36,  now  Real  Prop- 
erty Law,  §  60,  relating  to  dispositions  of  rents  and 
profits,  was  adequate  to  give  this  effect  to  §  14,  even  if 
there  had  then  been  no  general  suspension  clause.1  "  It 
was  enough  that  the  statute  had  once  declared  that  the 
absolute  power  of  alienation  should  not  be  suspended 
beyond  a  specified  period,  and  that  this  should  not  be 
effected  by  any  limitation  or  condition  whatever.  But 
this  is  not  all.  The  36th  section  expressly  provides  that 
dispositions  of  the  rents  and  profits  of  lands  shall  be 
governed  by  the  rules  established  in  relation  to  future 
estates.  This  alone  covers  the  whole  ground.  It  ex- 
tends to  every  disposition  of  rents  and  profits  without 
any  reference  to  the  purpose  to  which  they  are  to  be 
applied,  and  it  reaches  every  trust  which  the  testator 
has  attempted  to  create."  2 


1  Amory  v.  Lord,  9  N.  Y.  403,  416;  Hawley  v.  James,  5Pai.  317,  458-9, 
and  16  Wend.  61,  124,  128-132,  163,  166,  174,  265-6;  Clute  v.  Bool,  8  Pai. 
85;  Thompson  v.  Carmichael's  Ex'rs,  1  Sandf.  Ch.  387,  396;  Lorillard  v. 
Coster,  5  Pai.  172,  218-224;  Coster  v.  Lorillard,  14  Wend.  265,  305,  317- 
318,  387;  Hone  v.  Van  Schaick,  7  Pai.  221,  231,  233,  and  20  Wend.  564; 
Gott  v.  Cook,  7  Pai,  521 ;  Craig  v.  Hone,  2  Edw.  Ch.  554,  564;  Yates  v. 
Yates,  9  Barb.  324,  344,  347. 

5  Hawley  v.  James,  16  Wend.  61,  174. 


138     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  rV. 

§  231.  (2)  The  present  §  60  of  the  Real  Property 
Law,  relating  to  dispositions  of  rents  and  profits,  rep- 
resents a  legislative  approval  and  continuation,  both  in 
1896,  and  in  1909,  of  1  R.  S.,  §  36,  without  any  change 
bearing  on  the  question  under  consideration,  and  thus 
is  now  to  be  taken  as  a  formal  approval  by  the  Legisla- 
ture of  the  construction  put  on  §  36  by  the  cases  above 
cited,  in  accordance  with  the  familiar  principle  applied 
in  the  cases  cited  below.1 

§  232.  (3)  The  Commissioners  of  Statutory  Revision 
state  that  the  section  now  numbered  42  is  "  unchanged 
in  substance."  This  statement  can  only  be  explained 
by  assuming  that  they  relied  on  the  adequacy  of  §  60,  to 
supply  the  place  of  the  general  suspension  clause  which 
they  omitted  from  §  42. 

§  233.  (4)  The  Personal  Property  Law,  §  11,  still 
contains  the  "  general  suspension  clause "  which  has 
been  omitted  from  the  Real  Property  Law.  The  same 
rules  are  to  be  applied  to  the  two  classes  of  property 
wherever  practicable.2 

§  234.  (5)  The  courts,  though  without  discussion 
of  the  point  now  under  consideration,  have  in  fact  con- 
tinued since  1896  to  hold,  in  dealing  with  trusts  to 
receive  and  apply  rents  and  profits,  the  validity  of 
which  was  to  be  determined  by  the  provisions  of  the 
Real  Property  Law,  that  the  trustees  cannot  convey  in 


1  People  v.  Green,  06  N.  Y.  466,  475;  Matter  of  Baird,  126  A  pp.  Div. 
439,  443;  Hakes  v.  Peck,  30  How.  Pr.  104;  Pulitzer  v.  City  of  N.  Y.  48 
App.  Div.  6,  10;  Comm.  v.  Hartnett,  3  Gray,  450;  L.  1909,  Ch.  596. 
Stat.  Constr.  L. ,  §  95 ;  United  States  v.  Gilmore,  8  Wall.  330 ;  cases  cited 
in  Halsey  v.  Jewett  Dramatic  Co.,  114  App.  Div.  420,  423,  rev'd  on 
other  grounds,  190  N.  Y.  231.  No  change  should  be  assumed.  Davis 
v.  Davis,  75  N.  Y.  221;  Whitney  v.  Whitney,  63  Hun,  59;  DeGrauw  v. 
Long  Island  EL  R.  Co.,  43  App.  Div.  502;  163  N.  Y.  597. 

2  §§  384,  385,  infra. 


§  235.]  THE  "STATUTORY  PERIOD."  139 

contravention  of  the  trust ; 1  that  the  beneficiary  cannot 
transfer  his  rights  and  interests ; 2  that  accordingly  a 
suspension  is  thus  effected ;  3  and  finally,  have  proceeded 
upon  the  theory  that  the  permissible  term  of  such  sus- 
pension is  still  confined,  like  that  occasioned  by  future 
estates,  within  the  limits  of  the  "  statutory  period." 

§  235.  For  the  Real  Property  Law  became  a  law 
May  12,  1896,  and  became  effective  October  1,  1896.4 
The  case  of  Herzog  v.  Title  Guarantee  &  Trust  Co-5 
deals  with  the  will,  executed  June  9,  1892,  in  connection 
with  a  codicil  thereto  executed  after  1896,  of  a  testator 
who  died  March  31,  1901.  It  was  the  codicil,  executed 
after  1896,  that  introduced  the  question  as  to  the  ex- 
istence or  non-existence  of  a  suspension  of  the  power  of 
alienation  of  real  property,  illegal  because  the  trust 
which  occasioned  it  might  extend  through  three  lives 
in  being.  Although  there  was  another  ground  for  the 
finding  of  an  illegal  suspension,  the  scheme  of  the  codi- 
cil was  also  regarded  as  void  on  account  of  the  trust  for 
three  lives.  In  Kahn  v.  Tierney?  the  will  was  executed 
after  1896,  and  if  in  fact,  as  well  as  upon  the  face  of  the 
will,  the  trust  did  involve  real  property,  the  case  is  a 
direct  authority  to  the  same  effect.  But  it  does  not 
appear  clear  that  real  property  was  involved.  The 
opinion  evidently  indicates  the  view  that  the  decision 
would  have  been  the  same,  whether  real  property  was 
involved  or  not.     Brown  v.  Quintard,1  and  Whitefield 


1  Lewisohn  v.  Henry,  179  N.  Y.  352. 

5  Slater  v.  Slater,  114  App.  Div.  160,  aff'd  188  N.  Y.  633 ;  Lewisohn  v. 
Henry,  179  N.  Y.  352. 

3  Lewisohn  v.  Henry,  179  N.  Y.  352. 

4  L.  1896,  Ch.  547,  §  301. 

5  177  N.  Y.  86. 

6 135  App.  Div.  897,  aff'd  201  K  Y.  516. 
1  177  N.  Y.  75. 


140     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

v.  Crissman,1  also  appear  to  be  authorities  in  point. 
Both  relate  to  wills  executed  after  1896.  In  both,  the 
trust  was  held  void  because  not  limited  to  two  lives. 
The  only  possible  doubt  as  to  their  bearing  on  the  pres- 
ent question  is,  whether  they  are  to  be  regarded  as  deal- 
ing with  real  property,  or  only  with  personal  property. 
In  each  there  was  a  power  of  sale  sufficient  to  obviate 
suspension  of  the  power  to  alienate  the  real  property, 
except  for  the  fact  that  the  purpose  of  the  power  was 
illegal.  The  power  itself  being  thus  void,  could  not 
operate  to  obviate  suspension,  if  any  existed,  and 
accordingly  the  decisions  may  involve  the  existence  of  a 
suspension,  occasioned  by  a  trust  to  receive  and  apply 
rents  and  profits  of  real  property,  and  illegal  because 
not  duly  limited  to  two  lives.2 

§  236.  But  apart  from  these  cases,  there  are  others, 
relating  clearly  to  real  estate,  where,  although  the  will 
itself  was  executed  while  the  Revised  Statutes  were  in 
force,  the  death  of  the  testator  occurred,  and  the  will 
first  became  operative,  after  the  Real  Property  Law  had 
become  effective  and  controlling  upon  the  question  of 
the  validity  of  the  trust  term.3  These  are  Kalish  v. 
Kalish,4  where  the  trust   was  held  void   under   Real 


1  123  App.  Div.  233. 

5  In  Hooker  v.  Hooker,  166  N.  Y.  156;  Schey  v.  Schey,  194  N.  Y.  368, 
and  Matter  of  Lally,  136  App.  Div.  781,  aff  d  198  N.  Y.  608,  there  was 
perhaps  an  equitable  conversion,  and  if  so,  they  are  not  here  in  point. 

3  In  such  cases  the  question  of  whether  or  not  a  given  testamentary 
scheme  of  suspension  must,  to  be  valid,  be  restricted  to  the  "statutory 
period  "  would  depend  on  the  law  as  it  stood  at  testator's  death.  DePey- 
ster  v.  Clendining,  8  Pai.  295,  304,  aff'd  26  Wend.  21 ;  Bishop  v.  Bishop, 
4  Hill,  138;  Sherman  v.  Sherman,  3  Barb.  385,  387;  Adams  v.  Wilbur,  1 
Fed.  Cases,  No.  70;  Child  v.  Child,  1  N.  Y.  Leg.  Obs.  182,  184;  Ellison  v. 
Miller,  11  Barb.  332;  Parker  v.  Bogardus,  5  N.  Y.  309;  Moultrie  v.  Hunt, 
23  N.  Y.  394,  398;  Obecny  v.  Goetz,  116  App.  Div.  807,  and  134  App. 
Div.  166;  original  §  1  of  the  Real  Property  Law  of  1896;  §  461  of  the 
Real  Property  Law  as  it  stands  in  1911. 

4 166  N.  Y.  368. 


§238.]  THE  "STATUTORY  PERIOD."  141 

Property  Law,  §  32  (now  §  42),  for  undue  suspension 
even  apart  from  the  accumulation  involved ;  and  Frazer 
v.  Hoguet,1  where  the  trust  was  held  free  from  any 
illegal  suspension,  and  valid,  for  the  reason  that  it  was 
so  framed  that  it  could  not  continue  beyond  two  lives 
in  being. 

§  237.  The  general  prohibition  which  was  formerly 
contained  in  the  statute,  ought  not  to  have  been  omitted, 
and  ought,  for  the  sake  of  clearness,  to  be  re-instated; 
but  nevertheless  there  appears  now  to  be  no  room  for 
the  suggestion  that  the  omission  operated  to  effect  any 
change  in  the  law  as  it  formerly  stood. 

§  238.  Reading  §  42  in  this  sense,  in  connection  with 
§  96,  subdivision  3,  the  mutual  relations  of  the  two  sec- 
tions may  therefore  be  stated  as  follows : 

Section  42  deals  with  the  duration  of  the  term  of  the 
entire  trust,  and  says  in  effect,  that  the  whole  trust 
must  be  begun,  carried  on,  and  terminated,  within  the 
limit  of  any  two  lives  that  may  be  designated  to  meas- 
ure its  duration.  "  It  does  not  dictate  what  lives ;  *  *  * 
only,  they  must  be  '  in  being,'  when  the  trust  is  created. 
That  is  the  sole  restriction.  Any  two  designated  lives 
are  made  to  serve  merely  as  a  standard,  or  measure  of 
duration,  *  *  *  ." 2  It  looks  at  the  trust  as  one 
complete  whole,  and  it  marks  out  a  gross  term  during 
which  the  trust  as  a  whole  may  continue,  and  beyond 
which  it  cannot  go.  But  with  the  time  limits  of  the  in- 
terest of  each  beneficiary,  within  the  boundaries  of  this 
gross  term,  this  section  has  no  concern.  That  branch  of 
the  subject  is  taken  up  in  section  96,  which,  on  its  part, 
prescribes  how  protracted  a  beneficial  interest  may  be 
allotted  to  each  beneficiary  while  the  general  trust  at 
large  is  moving  on  through  its  own  fixed  term. 

1  65  App.  Div.  192. 

'Crooke  v.  County  of  Kings,  97  N.  Y.   421,  436;  Bailey  v.  Bailey,  97 
N.  Y.  460. 


142     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

§  239.  These  respective  meanings  of  the  two  statu- 
tory provisions,  as  applied  to  suspension  occasioned  by 
trusts,  may  be  briefly  summed  up  as  follows: 

Real  Property  Law,  §  42.    Real  Property  Law,  §,  96. 

A  suspension  occasioned  Subject  to  these  general 
by  a  trust  may  continue  boundaries,  the  interest  of 
during  a  period  measured  each  beneficiary  may  con- 
as  there  prescribed,  and  tinue  for  his  whole  life  or 
no  longer.  for  any  shorter  term. 

§  240.  It  is  evident  that  whenever  the  lives  of  bene- 
ficiaries are  designated  as  the  ones  which  shall  measure 
the  term  of  the  trust,  they  fall  within  the  view  of  both 
of  these  statutory  provisions.  Under  one  section  they 
appear  only  as  the  lives  of  the  beneficiaries,  and  as 
serving  to  show  how  long  each  beneficiary  may  enjoy 
the  trust,  and  under  the  other  they  appear  simply  as 
two  lives  arbitrarily  selected  to  measure  the  limit  of 
the  whole  term  as  such.  And  the  manner  in  which  the 
two  provisions  play  together  without  friction,  is  thus 
stated  by  Finch,  J.,  in  the  opinion  of  the  court  in  Crooke 
v.  County  of  Kings : 1  "  The  natural  term,  which  is  the 
lives  of  all  the  beneficiaries,  and  the  stipulated  term, 
which  is  the  close  of  the  selected  and  designated  lives, 
may  either,  taken  separately,  work  out  an  unlawful 
trust;  while  construed  together  and  in  combination  as 
they  should  be,  they  bring  the  trust  within  the  require- 
ment of  the  statute.  The  natural  term  alone  might 
make  the  trust  last  beyond  the  lawful  extent  of  two 
lives  in  being.  The  stipulated  term  alone  might  go 
beyond  the  lives  of  the  beneficiaries.  But  the  two,  com- 
bined and  made  elements  of  the  trust  in  its  creation, 
effect  a  lawful  duration,  and  limit  the  trust  to  the  stipu- 


1  97  N.  Y.  421,  439. 


§  240.]  THE  "STATUTORY  PERIOD."  143 

lated  term,  unless  before  it  is  reached  the  natural  term 
expires;  or  to  the  natural  term,  unless  before  it  is 
reached  the  stipulated  term  expires.  Unless  the  lan- 
guage of  the  will  creating  the  trust  imperatively  for- 
bids, where  both  terms  are  present  as  elements  of  the 
creation,  it  must  be  construed  to  run  for  the  natural 
term  except  as  shortened  by  the  stipulated  term ;  or  for 
the  stipulated  term  except  as  shortened  by  the  natural 
term.     *     *     *     The  trust  can  outrun  neither." 1 


1  In  the  opinion  of  Cullen,  Ch.  J.,  in  Matter  of  Wilcox,  194  N.  Y.  288, 
293,  there  is  a  dictum  that  a  trust  to  receive  and  apply  rents  and  profits 
may  in  some  instances  be  validly  created  for  the  period  of  a  minority  after 
two  lives.  It  is  believed  that  this  is  the  first  time  that  the  suggestion  has 
ever  been  mentioned  in  any  reported  case,  unless  involved  in  Harrison  v. 
Harrison,  36  N.  Y.  543.  See  also  Renwick  v.  Weeden,  135  App.  Div.  695. 
The  authority,  Manice  v.  Manice,  43  N.  Y.  303,  cited  by  Judge  Cullen, 
related  to  a  trust  for  accumulation,  where  the  matter  is  affected  by  other 
statutory  provisions.  But  it  must  be  admitted  that  it  is  difficult  to  find 
any  specific  statutory  provision  which  explicitly  and  necessarily  renders 
such  a  further  term  void,  in  all  cases,  for  a  trust  to  receive  and  apply 
rents.  See,  however,  Quade  v.  Bertsch,  65  App.  Div.  600;  173  N.  Y. 
615.     The  point  must  at  present  be  regarded  as  perhaps  not  finally  settled. 

For  its  general  bearing  upon  the  existence  of  a  suspension  of  the  power 
of  alienation  under  given  express  trusts,  according  to  the  time  of  their 
creation,  as  affected  by  different  statutes  from  time  to  time  in  force  in 
relation  to  merger,  revocation,  etc.,  (see  §  399,  supra),  the  following  note 
from  V  Columbia  Law  Review,  391-393  (May,  1905)  is  of  interest:  "The 
destructibility  of  a  trust  in  New  York  therefore  seems  to  depend  on  the  date 
of  its  creation.  Trusts  created  prior  to  January  1,  1830,  are  destructible 
by  any  method  known  to  the  common  law.  Trusts  created  between  Jan- 
uary 1,  1830,  and  April  21,  1893,  are  indestructible;  but  it  seems  to  be  an 
open  question  whether  destruction  of  such  a  trust  would  be  allowed  if  a 
merger  were  attempted,  or  was  alleged  to  have  occurred  by  law,  between 
April  21,  1893,  and  October  1,  1896,  if  realty,  or  between  April  21,  1893, 
and  October  1,  1897,  if  personalty,  during  which  periods  Section  63  [Real 
Property  Law,  section  103]  was  expressly  retroactive.  Trusts  of  either 
realty  or  personalty,  created  between  April  21,  1893,  and  March  25,  1903, 
are  destructible.  Trusts  created  since  March  25,  1903,  are  indestructible.'' 
Also  Fowler,  Pers.  Prop.  L.,  §  15;  Mr.  R.  Floyd  Clarke's  article  in  V 
Columbia  Law  Review,  380;  id.  p.  407;  Metcalfe  v.  Union  Trust  Co.,  181 
N.  Y.  39 ;  and  cases  cited  supra,  §  63,  note  3.  To  which  it  may  be  added, 
that  from  April  23,  1909,  L.  1909,  Ch.  247,  adding  a  new  section,  23,  to 
the  Personal  Property  Law,  trusts  of  personal  property  may  be  revoked 


144    SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.    [CH.  IV. 

Combination  of  Different  Trusts  and  Powers. 

§  241.  The  foregoing  sections  have  discussed  the  sev- 
eral trusts  provided  for  by  Real  Property  Law,  §  96, 
subdivisions  1  to  4,  as  if  the  valid  trust  dispositions  of  a 
given  instrument  always  fell  solely  within  one  or  an- 
other of  those  four  subdivisions.  But  in  fact,  under 
Eeal  Property  Law,  §  96,  a  given  instrument  may  create 
"  one  or  more  "'  of  the  four  'classes  of  express  trusts 
there  authorized;  and  either  or  any  of  the  trusts  so 
created  may  be  accompanied  by  powers  in  trust,  and 
by  special  provisions  modifying,  or  attempting  to 
modify,  the  nature  of  the  trust  created.1 

§  242.  As  a  result  of  combinations  of  different  trusts, 
or  trusts  and  powers,  under  the  same  instrument,  it 
may  often  happen  in  a  given  case  that  the  person  who 
is  the  trustee  of  one  trust  may,  by  virtue  of  another 
trust,  or  power,  acquire  a  title,  or  possess  an  authority, 
which  he  wrould  not  otherwise  have,  and  that  it  is  neces- 
sary in  order  to  ascertain  the  exact  force  of  a  reported 
decision  in  that  respect,  to  carefully  determine  the  par- 
ticular source  of  his  title  or  authority,  as  among  the 
several  trusts  or  powers  created.  In  the  same  way  it 
may  often  happen  that  a  suspension  of  the  power  of 
alienation  which  would  otherwise  exist  by  reason  of  a 
given  trust,  may  be  obviated  by  the  presence  of  an  ac- 


by  the  creator  thereof,  upon  written  consent  of  "all  the  persons  benefi- 
cially interested."  The  new  statute  cited  refers  by  its  terms  to  trusts 
"heretofore  or  hereafter  created."     §  399. 

1  Salisbury  v.  Slade,  160  K  Y.  278,  288 ;  Bennett  v.  Garlock,  79  N.  Y. 
302,  317;  Harvey  v.  Brisbin,  143  N.  Y.  151;  Lahey  v.  Kortright,  132 
N.  Y.  450;  Belmont  v.  O'Brien,  12  K  Y.  394;  Marvin  v.  Smith,  46  N.  Y. 
571;  dissenting  opinion  of  Earl,  J.,  in  Heermans  v.  Robertson,  64  N.  Y. 
332,  346;  Heermans  v.  Burt,  78  K  Y.  259;  Buchanan  v.  Little,  154  N.  Y. 
147;  People's  Trust  Co.  v.  Flynn,  188  N.  Y.  385;  Dunham  v.  Deraismes, 
165  N.Y.  65;  Clark  v.  Clark,  147  N.  Y.  639;  Corse  v.  Chapman,  153 
K  Y.  466;  Morse  v.  Morse,  85  N.  Y.  53,  59-60. 


§  245.]  RENTS  AND  PROFITS  UNDISPOSED  OF.  145 

companying  power  of  sale ; x  or  that  a  freedom  from 
suspension  which  would  otherwise  result  from  the  na- 
ture of  a  given  trust,  may  be  nullified  by  the  presence  of 
another  trust,  or  of  some  power  with  accompanying 
restrictions.2 

§  243.  But  a  disposition  to  take  effect  beyond  the 
statutory  period,  cannot  be  sustained  on  any  such 
theory,  if  the  clear  intent  of  the  creator  of  the  trust 
was  to  have  the  trust  as  such,  which  effects  a  suspen- 
sion, continue  through  a  term  not  duly  measured.3 

Rents  and  Profits  Undisposed  of. 

§  244.  "  When,  in  consequence  of  a  valid  limitation 
of  an  expectant  estate,  there  is  a  suspension  of  the 
power  of  alienation,  or  of  the  ownership,  during  the 
continuance  of  which  the  rents  and  profits  are  undis- 
posed of,  and  no  valid  direction  for  their  accumulation 
is  given,  such  rents  and  profits  shall  belong  to  the  per- 
sons presumptively  entitled  to  the  next  eventual 
estate."  4 

§  245.  This  provision  thus  appears  to  relate  only  to 
cases  where,  in  addition  to  other  elements  specified, 
there  is  a  suspension,  and  that  suspension  exists  "  in 
consequence "  of  a  valid  limitation  of  an  expectant 
estate.5  In  some  of  the  cases,  however,  the  statute  has 
been  applied  where  the  suspension  was  occasioned  solely 


1  Robert  v.  Corning,  89  N.  Y.  226;  Belmont  v.  O'Brien,  12  N.  Y.  394; 
Vernon  v.  Vernon,  53  N.  Y.  351 ;  Marvin  v.  Smith,  56  Barb.  600,  aff'd  46 
N.  Y.  571 ;  Spitzer  v.  Spitzer,  38  App.  Div.  438. 

2  Cases  above  cited,  and  Chapter  V. 

3  Herzog  v.  Title  Guarantee  and  Trust  Co.,  177  N.  Y.  86. 

4  Real  Prop.  L  ,  §  63. 

This  applies   both  to  re:d  and  to  personal  property,  Mills  v.  Husson, 
140  N.  Y.  99,  104;  United  States  Trust  Co.  v.  Sober,  178  N.  Y.  442,  450; 
St.  John  v.  Andrews  Institute,  191  N.  Y.  254,  280. 

5  Cochrane  v.  Schell,  140  N.  Y.  516,  538-9. 


146     SUSPENSION  OCCASIONED  BY  EXPRESS  TRUSTS.  [CH.  IV. 

by  a  present  estate  in  trust ; 1  or  by  the  future  equitable 
interest,  under  a  trust,  of  a  present  beneficiary.2  The 
common  law  rule,  as  applied  under  the  law  of  descent, 
and  distribution,  to  the  case  of  realty,  and  personalty, 
and  the  two  blended  in  one,  and  as  applied  to  a  residue ; 
and  the  New  York  statutory  rule  and  its  scope,  and  the 
principles  applicable  where  it  does  not  apply,  are  dis- 
cussed in  many  cases.3 


1  Matter  of  Tompkins,  154  N.  Y.  634;  Matter  of  Harteau,  125  App. 
Div.  711,  app.  dism'd.  196  N.  Y.  513;  Embury  v.  Sheldon,  68  N.  Y.  227, 
238;  Gould  v.  Rutherfurd,  6  Misc.  72;  79  Hun,  280;  Lowenhaupt  v. 
Stanisics,  95  App.  Div.  171.     See  also  Matter  of  Roos,  4  Misc.  232. 

2  Pray  v.  Hegeman,  92  N.  Y.  508.  Compare,  however,  Cochrane  v. 
Schell,  140  N.  Y.  516,  538-9. 

3  Cochrane  v.  Schell,  140  N.  Y.  516;  United  States  Trust  Co.  v.  Soher, 
178  N.  Y.  442,  450;  St.  John  v.  Andrews  Institute,  191  N.  Y.  254,  279, 
280;  Meldon  v.  Devlin,  31  App.  Div.  146,  156-8,  aff'd  167  N.  Y.  573; 
Matter  of  Hoyt,  116  App.  Div.  217,  aff'd  189  N.  Y.  511 ;  Matter  of  Brown, 
154  N.  Y.  313;  Delaneld  v.  Shipman,  103  N.  Y.  463,  469;  Barbour  v. 
DeForest,  95  N.  Y.  13;  Cook  v.  Lowry,  95  N.  Y.  103;  Schermerhorn  v. 
Cotting,  131  N.  Y.  48;  Schettler  v.  Smith,  41  N.  Y.  328,  340;  Williams 
v.  Williams,  8  N.  Y.  525;  Matter  of  Dey  Ermand,  24  Hun,  1,  5;  Reeves 
v.  Snook,  86  App.  Div.  303;  Matter  of  Viele,  35  App.  Div.  211;  Levi  v. 
Scheel,  124  App.  Div.  613.  See  also  Matter  of  Martinus,  65  Misc.  135; 
Matter  of  Pray,  48  Misc.  285;  Chaplin,  Express  Trusts  and  Powers, 
§§  489,  494. 


CHAPTER  V. 

SUSPENSION  OCCASIONED  BY  POWERS. 

Powers  Defined  and  Classified. 
Relation  of  Powers  to  Title. 
Relation  of  Powers  to  Suspension. 
Powers  that  do  not  Occasion  Suspension. 

(a)  Beneficial  Powers. 

(b)  General  Powers  to  Sell  or  Convey. 

(c)  Powers  to  Hold  and  Manage. 

(d)  Determinable  Powers  to  Sell  in  Future. 

(e)  Revocable  Powers. 

Powers  that  do  Occasion  Suspension. 

(a)  Powers  of  Sale,  Proceeds  to  Trustee. 

(b)  Powers  of  Sale,  Proceeds  to  Persons  not  in  Being. 

(c)  Imperative  Powers  to  Appoint. 

(d)  Imperative  Powers  to  Convey. 

(e)  Non-Terminable  Powers  to  Sell  in  Future. 
Powers  that  Obviate  Suspension. 

The  Statutory  Period  as  to  Powers. 

Powers  Defined  and  Classified. 

§  246.  A  power  is  an  authority  to  do  an  act  in  rela- 
tion to  real  property,  or  to  the  creation  or  revocation 
of  an  estate  therein,  or  a  charge  thereon,  which  the 
owner,  granting  or  reserving  the  power,  might  himself 
lawfully  perform.1 

§  247.  A  power  is  either  general  or  special,  and 
either  beneficial  or  in  trust.2 


'Real  Prop.  L.  §  131.     As  to  powers  of  attorney,  see  id.  §  130. 

2 Id.,  §  133;  Cutting  v.  Cutting,  86  N.  Y.  522;  Sweeney  v.  Warren, 
127  N.  Y.  426,  434;  Hume  v.  Randall,  141  N.  Y.  499;  Deegan  v.  Wade, 
144  N.  Y.  573,  578;  Weinstein  v.  Weber,  178  N.  Y.  94,  100;  Kinnier  v. 
Rogers,  42  N.  Y.  531 ;  Matter  of  Blauvelt,  131  N.  Y.  249.     Designation  of 

147 


148  SUSPENSION  OCCASIONED  BY  POWERS.         [CH.  V. 

§  248.  A  power  is  general,  where  it  authorizes  the 
transfer  or  incumbrance  of  a  fee,  by  either  a  convey- 
ance or  a  will  of,  or  a  charge  on,  the  property  embraced 
in  the  power,  to  any  grantee  whatever.1  A  power  is 
special  where  either :  1.  The  persons  or  class  of  persons 
to  whom  the  disposition  of  the  property  under  the 
power  is  to  be  made  are  designated;  or,  2.  The  power 
authorizes  the  transfer  or  encumbrance,  by  a  convey- 
ance, will  or  charge,  of  any  estate  less  than  a  fee.2  A 
general  or  special  power  is  beneficial,  where  no  person, 
other  than  the  grantee,  has,  by  the  term  of  its  creation, 
any  interest  in  its  execution.  A  beneficial  power,  gen- 
eral or  special,  other  than  one  of  those  specified  and  de- 
fined in  the  article  on  Powers,  is  void.3  A  general 
power  is  in  trust,  where  any  person  or  class  of  persons, 
other  than  the  grantee  of  the  power,  is  designated  as 
entitled  to  the  proceeds,  or  any  portion  of  the  proceeds, 
or  other  benefits  to  result  from  its  execution.4  A  spe- 
cial power  is  in  trust,  where  either,  1.  The  disposition 
or  charge  which  it  authorizes  is  limited  to  be  made  to 
a  person  or  class  of  persons,  other  than  the  grantee  of 
the  power;  or,  2.  A  person  or  class  of  persons,  other 
than  the  grantee,  is  designated  as  entitled  to  any  bene- 
fit, from  the  disposition  or  charge  authorized  by  the 
power.5 

§  249.  The  grantor  in  a  conveyance  may  reserve  to 
himself   any   power,   beneficial   or   in   trust,   which   he 


beneficiary.  Sweeney  v.  Warren,  127  N.  Y.  426,  433.  Compare  Matter 
of  Stewart,  131  N.  Y.  274,  279 ;  Towler  v.  Towler,  142  N.  Y.  371 ;  Mel- 
don  v.  Devlin,  31  App.  Div.  146,  aff'd  167  N.  Y.  573;  Read  v.  Williams, 
125  N.  Y.  560. 

1  Real  Prop.  L.,  §134. 

2  Id.  §135. 

3  Id.  §  136. 

4  Id.  §  137. 

5  Id.  §  138. 


§  250.]  RELATION  OF  POWERS  TO  TITLE.  149 

might  lawfully  grant  to  another;  and  a  power  thus  re- 
served is  subject  to  the  provisions  of  the  statute  con- 
cerning powers,  in  the  same  manner  as  if  granted  to 
another.1 

Relation  of  Powers  to  Title. 

§  250.  Powers,  when  viewed  with  reference  to  their 
bearing  upon  the  title  to  the  property  affected,  are  of 
two  classes;  for  on  the  one  hand,  the  grant  of  an  "  ab- 
solute power  of  disposition  "  operates  automatically, 
under  certain  circumstances  specified  in  the  statute,  to 
effect  an  absolute  fee  in  the  grantee  of  the  power,2  and 
on  the  other  hand,  in  other  cases,  the  power  does  not 
operate  by  its  existence  to  confer  a  fee  on  the  grantee, 
and  the  title  and  the  power  remain  distinct.  Thus  the 
title  may  be  vested  in  one  person,  while  a  power  to  con- 
vey is  in  another ; 3  or  the  title  to  some  given  estate  in 
the  property  less  than  an  absolute  fee  and  the  power  to 


1  Id.  §  144. 

In  addition  to  the  discussion  in  the  following  sections  of  statutory  pro- 
visions and  decisions  relating  particularly  to  suspension,  see  for  a  general 
outline  of  the  law  of  powers,  their  creation,  construction,  scope,  execu- 
tion and  termination,  and  for  further  definitions  of  terms  employed,  Real 
Prop.  L.  §  130-182 ;  Cutting  v.  Cutting,  86  N.  Y.  522 ;  Farmers'  Loan  & 
Trust  Co.  v.  Kip,  192  N.  Y.  266;  Corse  v.  Chapman,  153  N.  Y.  466; 
Leggett  v.  Firth,  132  N.  Y.  7;  Cahill  v.  Russell,  140  N.  Y.  402;  Matter 
of  Gantert,  136  N.  Y.  106;  Phillips  v.  Davies,  92  N.  Y.  199,  203;  Cussack 
v.  Tweedy,  126  K  Y.  81;  Bruner  v.  Meigs,  64  N.  Y.  506;  Mutual  Life 
Ins.  Co.  v.  Shipman,  119  N.  Y.  324  ;  N.  Y.  L.  I.  &  T.  Co.  v.  Livingston, 
133  N.  Y.  125;  Lockwood  v.  Mildeberger,  159  N.  Y.  181;  Fargo  v. 
Squiers,  154  N.  Y.  250,  262  ;  Mott  v.  Ackerman,  92  K  Y.  539;  Coann  v. 
Culver,  188  N.  Y.  9,  16;  Lahey  v.  Kortright,  132  N.  Y.  450,  456;  Cooke 
v.  Piatt,  98  K  Y.  35,  39;  Royce  v.  Adams,  123  N.  Y.  402,  405;  Greenland 
v.  Waddell,  116  N.  Y.  234,  240;  Ward  v.  Ward,  105  N.  Y.  68. 

2  Real  Prop.  L.,  §§  149-154.     This  subject  is  discussed,  infra,  §  298. 

3  Henderson  v.  Henderson,  113  N.  Y.  1 ;  Mutual  Life  Ins.  Co.  v.  Ship- 
man,  108  N.  Y.  19;  Chamberlain  v.  Taylor,  105  N.  Y.  185,  192;  Dana  v. 
Murray,  122  X.  Y.  604;  Garvey  v.  McDevitt,  72  N.  Y.  556;  Real  Prop. 
L.  §§  41,  97,  99  ;  Sayles  v.  Best,  140  N.  Y.  368;  Skinner  v.  Quin,  43 
N.  Y.  99;  Crittenden  v.  Fairchild,  41  N.  Y.  289;  Kinnier  v.  Rogers,  42 
N.  Y.  531 ;  Drake  v.  Paige,  127  N.  Y.  562. 


150  SUSPENSION  OCCASIONED  BY  POWERS.       [CH.  V. 

convey  any  estate  other  than  the  given  one,  may  be  in 
the  same  person;  or  the  title  to  a  given  estate  may  be 
held  by  one  person  in  trust  and  the  same  person  may 
have  a  power  to  dispose  of  that  estate,  or  other  estates, 
or  the  fee.1 

Relation  of  Powers  to  Suspension. 

§  251.  In  previous  Chapters  we  have  considered  sus- 
pension of  the  absolute  power  of  alienation  as  occa- 
sioned by  certain  contingencies,  and  by  certain  express 
trusts.  The  present  Chapter  deals  with  the  relation 
of  powers  to  suspension.  And  the  test  of  the  distinc- 
tion between  powers  that  do,  and  those  that  do  not  occa- 
sion such  suspension,  is  found  in  the  statutory  provi- 
sion that  "  The  absolute  power  of  alienation  is  sus- 
pended, when  there  are  no  persons  in  being  by  whom 
an  absolute  fee  in  possession  can  be  conveyed."  2 

§  252.  It  has  often  been  stated  that  there  are  only 
two  ways  in  which  a  suspension  of  the  power  of  aliena- 
tion can  be  effected,  namely  by  certain  contingencies, 
and  by  certain  express  trusts.3  But  on  the  other  hand, 
the  statute  recognizes  the  proposition  that  the  absolute 
right  of  alienation  may  be  suspended  "  by  an  instru- 
ment in  execution  of  a  power,"  and  provides  that  the 
period  of  such  suspension  shall  be  computed,  not  from 
the  date  of  such  instrument,  but  from  the  time  of  the 
creation  of  the  power. 4  And  so  also  where  a  power  of 
sale  is  created,  to  be  exercised  at  the  expiration  of  a 


1  Power  to  an  executor  to  change  a  life  estate  into  a  fee,  and  thereby  cut 
off  remainders.     Viele  v.  Keeler,  129  N.  Y.  190. 

2  Real  Prop.  L.,  §  42. 

3  Wilber  v.  Wilber,  165  N.  Y.  451,  456;  Steinway  v.  Steinway,  163  N. 
Y.  183,  194;  Smith  v.  Edwards,  88  N.  Y.  92,  102;  Everitt  v.  Everitt,  29 
N.  Y.  39,  71-2;  Leonard  v.  Burr,  18  N.  Y.  96,  107.     See  §  124,  supra. 

*  Real  Prop.  L.,  §  178.     See  also  id.  §  179;  and  §  294,  infra. 


§  254.]  RELATION  OF  POWERS  TO  SUSPENSION.  151 

period  not  duly  measured  by  lives  in  being,  and  its  ex- 
ercise in  the  meantime  is  expressly  prohibited,  "  the 
power  does  suspend  the  absolute  power  of  alienation 
until  that  time,  and  is,  therefore,  void."  * 

§  253.  It  accordingly  appears  that  in  some  sense 
there  are  in  reality  three  ways,  namely  by  certain  con- 
tingencies, by  certain  express  trusts,  and  by  certain 
powers,  that  the  suspension  of  the  absolute  power  of 
alienation  can  be  occasioned.  The  exact  meaning,  how- 
ever, of  the  proposition  that  this  result  can  be  accom- 
plished by  a  power  calls  for  precise  determination,  and 
it  is  believed  that  the  apparent  discrepancy  between  the 
two  forms  of  stating  the  matter  will,  with  one  exception 
hereafter  considered,  disappear  upon  analysis. 

§  254.  In  the  first  place,  the  mere  proposition  that 
the  power  of  alienation  may  be  suspended  by  an  instru- 
ment in  execution  of  a  power,  is  in  itself  in  no  way  in- 
consistent with  the  proposition  that  a  suspension  can 
only  be  occasioned  by  certain  contingencies  or  certain 
trusts.  For  the  former  proposition  as  to  powers  relates 
only  to  the  nature  of  the  instrument  itself  by  means  of 
which  the  suspension  may  be  created,  and  not  at  all  to 
the  way  in  which  its  provisions  operate  to  occasion  that 
result.  It  only  amounts  to  this,  that  the  power  of 
alienation  may  be  suspended  not  only  by  means  of  a 
deed  or  a  will  of  the  owner  of  the  title,  but  also  by 
means  of  an  instrument  by  which  the  grantee  of  a 
power,  executes  the  power.2  But  when  we  come  to  ex- 
amine the  way  in  which  an  instrument  in  execution  of 
a  power  does  operate  to  occasion  a  suspension,  we  find 
that  it  must  do  so  merely  by  the  forms  of  disposition 


1  Matter  of  Christie,  59  Hun,  153,  158,  aff'd  as  Matter  of  Will  of  Butter- 
field.  133  N.  Y.  473. 

2  Everitt  v.  Everitt,  29  N.  Y.  39,  78. 


152  SUSPENSION  OCCASIONED  BY  POWERS.       [CH.  V. 

which  might  have  been  adopted  for  the  same  purpose 
in  the  original  instrument  by  which  the  power  was 
created.  For  "  An  estate  or  interest  cannot  be  given 
or  limited  to  any  person,  by  an  instrument  in  execution 
of  a  power,  unless  it  would  have  been  valid,  if  given  or 
limited  at  the  time  of  the  creation  of  the  power."  1 
Thus  the  grantee  of  the  power,  if  so  authorized,  might 
effect  a  suspension  by  the  creation  of  certain  express 
trusts,  or  by  the  limitation  of  certain  contingent  future 
estates,  and  the  validity  of  the  period  of  the  suspension 
thus  effected  would  be  determined  by  computing  the 
same  from  the  time  of  the  creation  of  the  power.2  In 
such  cases  while  the  suspension  may  in  fact  be  brought 
into  operation  by  the  execution  of  the  power,  the  way 
in  which  the  suspension  is  occasioned  is  still  found  to 
be  by  an  express  trust  or  a  contingency.  Illustrations 
of  this  class  are  found  in  the  following  sections. 

§  255.  And  a  similar  result  may  follow  even  before 
the  power  has  in  fact  been  executed.  If,  for  example, 
the  terms  of  its  creation  are  such  as  to  require  the  gran- 
tee to  execute  it  by  creating  a  trust  or  a  contingency 
from  which  a  suspension  will  result,  it  necessarily  fol- 
lows that  in  the  meantime,  and  pending  the  execution, 
a  suspension  already  exists.  And  the  same  result  fol- 
lows if  the  terms  of  the  instrument  creating  the  power 
require  its  execution  only  at  a  future  time,  in  favor  of 
persons  not  yet  in  being.  But  the  way  in  which  the  sus- 
pension pending  the  execution  of  the  power  is  occa- 
sioned in  such  cases  is  still  to  be  found  in  the  trust,  or 
the  contingency,  involved  in  the  provisions  of  the  orig- 
inal instrument.  Illustrations  of  this  class  are  also 
to  be  found  in  the  following  sections.  So  far  as  con- 
cerns these  cases,  therefore,  the  recognition  of  the  fact 


1  Real  Prop.  L.,  §  179;  Everitt  v.  Everitt,  29  N.  Y.  39,  78. 

2  §  294,  infra. 


§  257.]  RELATION  OF  POWERS  TO  SUSPENSION.  153 

that  a  suspension  may  be  effected  by  a  power,  does  not 
impair  the  force  of  the  proposition  that  the  only  way  in 
which  a  suspension  can  be  occasioned  is  by  certain  ex- 
press trusts  or  by  certain  contingencies. 

§  256.  But  there  is  one  exceptional  class  of  cases 
which  presents  some  difficulty.  This  class  is  illustrated 
by  Matter  of  Christie.1  Here  the  power,  which  was  a 
power  in  trust  to  sell  for  the  benefit  of  persons  in  being, 
had  not  been  exercised ;  there  was  nothing  in  the  will 
to  require,  or  even  to  permit,  the  grantee  of  the  power, 
in  executing  it,  to  create  either  a  trust  or  a  contingent 
future  estate;  and  yet  it  was  held  that  a  suspension  re- 
sulted from  the  fact  that  the  execution  of  the  power  was 
expressly  forbidden  until  a  future  time;  and  as  the  in- 
tervening term  was  not  restricted  within  the  limits  of 
the  "  statutory  period,"  the  power  was  void.  This  case 
may  indicate  that  there  is  a  third  way  to  occasion  a 
suspension.2 

§  257.  In  the  final  analysis,  however,  the  control- 
ling principle  is  found  in  the  statutory  declaration 
that  "  the  absolute  power  of  alienation  is  suspended, 
when  there  are  no  persons  in  being  by  whom  an 
absolute  fee  in  possession  can  be  conveyed,"  and  the 
only  purpose  of  an  effort  to  ascertain  how  man}7  ways 
there  are  to  effect  such  suspension,  is  therefore  merely 
to  determine  what  forms  of  disposition  do  thus  result  in 
an  absence  of  persons  in  being  who  can  convey  an  abso- 
lute fee  in  possession.  To  this  end  we  will  now  pro- 
ceed to  classify  the  various  forms  of  powers,  according 
as  they  do  not,  or  do,  in  the  sense  already  discussed, 
operate  to  occasion,  or  co-operate  in  occasioning,  an 
absence  of  such  persons  in  being,  or  operate  to  obviate 


1  59  Hun,  153,  affirmed  as  Matter  of  Butterfield,  133  N.  Y.  473. 

2  §  286. 


154  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

a  suspension  which  would  otherwise  exist.  And  in  the 
course  of  this  discussion  we  will  further  consider  the 
case  of  powers  the  exercise  of  which  is  expressly  pro- 
hibited until  a  future  time.  In  the  following  clas- 
sification the  various  subdivisions  are  offered  merely 
as  a  succession  of  illustrative  examples,  from  different 
points  of  view,  of  the  main  classes  to  which  they  belong. 
It  should  here  be  noticed  that  the  mere  possibility  that 
a  power  valid  in  itself,  and  authorizing  valid  acts  in 
execution  thereof,  might  thereafter  be  improperly  util- 
ized by  its  grantee  in  an  attempted  creation  of  an  ille- 
gal suspension,  does  not  operate  in  the  meantime  to 
effect  a  suspension.1  It  is  also  to  be  noticed  that  the 
grantee  of  a  power  might  in  some  cases  in  executing  it, 
dispose  of  the  property  in  exactly  the  same  manner  as 
would  have  resulted  in  case  the  power  had  not  been 
executed  at  all.2 

Powers  that  do  not  Occasion  Suspension. 

§  258.  This  class  consists  of  powers,  the  existence  of 
which  does  not  involve  an  absence  of  persons  in  being 
who  can  convey  an  absolute  fee. 

(a)  Beneficial  Powers. 

§  259.  Under  a  beneficial  power,  no  person  other  than 
the  grantee  thereof  has  any  interest  in  its  execution,3 
and  thus  generally  and  probably  invariably,  the  grantee 
has  such  ability  to  either  exercise  the  power,  or  in  some 


•  §§  115,  278. 

*  Matter  of  Lansing,  182  N.  Y.  238;  Matter  of  Delano,  176  N.  Y.  486; 
Matter  of  Cooksey,  182  N.  Y.  92;  Matter  of  Vanderbilt,  50  App.  Div. 
246,  163  N.  Y.  597  (see  Matter  of  Dows,  167  N.  Y.  227);  Matter  of  Pell, 
171  N.  Y.  48;  Matter  of  Langdon,  153  N.  Y.  6  ;  Matter  of  Chapman,  133 
App.  Div.  337,  196  N.  Y.  561;  Matter  of  Spencer,  119  App.  Div.  883,  190 
N.  Y.  517 ;  Matter  of  Haggerty,  128  App.  Div.  479,  194  N.  Y.  550. 

3  Real  Prop.  L.,  §136. 


§  261.]        GENERAL  POWERS  TO  SELL  OR  CONVEY.  155 

way  extinguish  the  same,  as  to  render  it  incapable  of 
effecting  suspension  by  its  mere  existence.  But  such 
a  power  may  be  so  executed  as  to  thereby  create  a  sus- 
pension. So  an  "  absolute  power  of  disposition  "  in  the 
sense,  and  under  the  circumstances,  set  forth  in  Real 
Prop.  Law,  §§  149-153,  cannot  occasion  a  suspension, 
because  it  operates  automatically,  by  its  mere  existence, 
to  invest  the  grantee  of  the  power  with  a  fee.1 

(b)  General  Powers  to  Sell  or  Convey. 

§  260.  In  one  class  of  cases,  a  valid  power  to  sell  is 
given,  under  which  a  sale  may  be  made  at  any  time,  and 
either  with  or  without  a  power  to  receive  the  rents 
pending  the  sale.  No  such  power  can  by  itself  alone 
occasion  a  suspension  of  the  absolute  power  of  aliena- 
tion of  the  real  property  in  question.  By  its  very  terms 
there  are  persons  in  being  who  can  alien  absolutely. 
This  is  equally  true  where  a  future  date  is  fixed  for 
the  exercise  of  the  power,  if  the  grantee  thereof  is  per- 
mitted to  sell  in  the  meantime  in  his  discretion.2  So 
with  a  present  and  continuing  power  to  sell,  appraise 
and  divide,3  or  to  sell  and  distribute,4  or  to  convey,  free 
from  any  express  trust,  to  designated  persons  in  being, 
or  to  make  a  beneficial  appointment  among  designated 
persons  in  being.5 

(c)  Powers  to  Hold  and  Manage. 

§  261.  There  may  be  a  valid  power  in  trust  to  retain 
possession  of  land  vested  in  a  grantee  or  devisee,  man- 

1  §  298. 

3  Robert  v.  Corning,  89  N.  Y.  225,  235,  239,  and  other  cases  cited,  §  42 
et  seq. 

8  Manice  v.  Manice,  43  N.  Y.  303. 

4  Robert  v.  Corning,  89  N.  Y.  225. 

5  See  the  cases  cited  in  succeeding  sections,  where  any  suspension  exist- 
ing is  due  to  the  absence  of  the  features  just  mentioned. 


156  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V- 

age  the  same,  receive  the  rents  and  profits,  pay  charges 
therefrom,  and  pay  over  the  surplus  rents  to  the  legal 
owner.  The  performance  of  such  duties  does  not  neces- 
sitate a  trust,  and  such  a  power  does  not  occasion  a  sus- 
pension of  the  absolute  power  of  alienation.  The  legal 
title  is  in  the  grantee  or  devisee,  and  he  may  at  any 
time  convey  an  absolute  title.  Consequently,  such  a 
power  may  be  created  for  a  term  not  measured  by  lives 
in  being,  or  to  begin  after  the  full  statutory  period  of 
suspension  has  expired.1  If,  however,  the  provision  is 
of  such  a  nature  that  it  would,  if  sustained,  operate  to 
render  alienation  impossible,  during  a  term  not  duly 
measured,  it  is  void.2  And  a  fully  constituted  express 
trust  cannot  be  held  to  be  only  a  provision  for  custody 
and  care  of  property,  for  the  purpose  of  avoiding  an 
illegal  suspension.3 

(d)  Terminable  Powers  to  Sell  in  Future. 

§  262.  Where  land  is  directed  to  be  converted  into 
money  by  the  exercise  of  a  power  in  trust,  and  the  money 
is  to  be  paid  over  to  designated  persons ;  or  where  money 
is  directed  to  be  laid  out  in  the  purchase  of  land  for 
designated  persons ;  and  these  persons  are  of  lawful  age 
and,  upon  the  actual  conversion,  at  once  entitled,  di- 
rectly and  not  in  trust,  to  receive  the  property  in  its  new 
form,  in  such  a  case  they  may,  before  the  conversion  has 


'Hawley  v.  James,  16  Wend.  61;  Everitt  v.  Everitt,  29  N.  Y.  39,  80; 
Tucker  v.  Tucker,  5  N.  Y.  408;  Post  v.  Hover,  33  N.  Y.  593;  Radley  v. 
Kuhn,  97  N.  Y.  26,  34;  Vanderpoel  v.  Loew,  112  N.  Y.  167;  Cussack  v. 
Tweedy.  126  N.  Y.  81,  88;  Provost  v.  Provost,  70  N.  Y.  141,  146;  Hender- 
son v.  Henderson,  113  N.  Y.  1,  12;  Durfee  v.  Pomeroy,  154  N.  Y.  583, 
595;  Foote  v.  Bruggerhof,  66  Hun,  406;  Matter  of  Wilkin,  183  N.  Y.  104; 
Quade  v.  Bertsch,  65  App.  Div.  600,  aff'd  173  N.  Y.  615;  Blanchard  v. 
Blanchard,  4  Hun,  287,  aff'd  70  N.  Y.  615.  See  also  in  general  as  to  both 
real  and  personal  property,  §  126. 

2  Bennett  v.  Chapin,  77  Mich.  526. 

s  Fargo  v.  Squiers,  154  N.  Y.  250,  260. 


§  264.]     TERMINABLE  POWERS  TO  SELL  IN  FUTURE.  157 

actually  taken  place,  elect  to  take  the  land  in  the  one 
case,  or  the  money  in  the  other,  in  its  unconverted  form 
(if  the  rights  of  others  will  not  be  affected  by  such  elec- 
tion) ;  and  the  exercise  of  the  election  terminates  the 
power  to  convert.1 

§  2G3.  And  wherever,  under  a  power  in  trust,  the 
beneficiary  is  also  vested  with  the  title  to  the  real  estate 
as  the  heir  or  devisee,  he  may,  even  though  not  upon  the 
sale  at  once  entitled  to  the  receipt  of  the  proceeds,  and 
before  the  power  has  been  or  could  be  exercised,  convey 
the  real  estate  by  warranty  deed,  and  thus  defeat  or 
annul  the  power  of  sale.  A  general  power  in  trust  is 
never  to  be  exercised  for  the  benefit  of  the  donee  of  the 
power.  He  has  no  beneficial  interest  in  its  exercise. 
He  must  exercise  it  for  the  sole  benefit  of  the  benefici- 
aries of  the  power,  and  when  for  any  reason  it  is  impos- 
sible to  exercise  it  for  their  benefit,  it  cannot  be  exer- 
cised.2 And  it  seems  that  even  though  the  beneficiary 
under  the  power  is  not  literally  vested  with  the  techni- 
cal legal  title  to  the  land,  he  may  nevertheless  release 
to  the  person  in  whom  the  bare  legal  title  is  vested,  and 
thus  terminate  the  power.3 

§  264.  Powers  which,  even  though  not  to  be  exercised 
until  a  future  date,  may  at  any  time  be  annulled  or  ter- 


1  Prentice  v.  Janssen,  79  N.  Y.  478,  485;  Hetzel  v.  Barber,  69  N.  Y.  1; 
Armstrong  v.  McKelvey,  104  N.  Y.  179;  Parker  v.  Linden,  113  N.  Y.  28, 
38;  Mellen  v.  Mellen,  139  N.  Y.  210,  220;  McDonald  v.  O'llara,  144  N.  Y. 
566,  569;  Trask  v.  Sturges,  170  N.  Y.  482,  497;  Mandlebaum  v.  Mc- 
Donell,  29  Mich.  78,  86;  Sayles  v.  Best,  140  N.  Y.  368;  Kilpatrick  v. 
Barron,  125  N.  Y.  751,  752;  Lane  v.  Albertson,  78  App.  Div.  607,  615, 
Compare  Mullina  v.  Mullins,  79  Hun,  421 ;  Smith  v.  Farmer  Type  Found- 
ing Co.,  16  App.  Div.  438. 

2  Garvey  v.  McDevitt,  72  N.  Y.  556,  563;  Greenland  v.  Waddell,  116 
N.  Y.  234,  246;  Hetzel  v.  Barber,  69  N.  Y.  1,  12. 

3  Garvey  v.  McDevitt,  72  N.  Y.  556,  503;  Armstrong  v.  McKelvey,  104 
N.  Y.  179,  183-4. 


158  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

minated  by  the  beneficiaries,  as  above  set  forth,  do  not 
operate  to  suspend  the  power  of  alienation.1 

§  265.  The  foregoing  doctrine  of  election  is  founded 
upon  the  presumption  that  the  power  is  given  for  the 
benefit  and  convenience  of  the  devisees  or  legatees  and, 
unless  made  so  in  terms,  was  not  intended  to  be  impera- 
tive, so  as  to  prevent  the  beneficiaries  from  taking  the 
donor's  bounty  except  in  the  precise  form  in  which  the 
property  would  exist  after  the  conversion.2 

§  266.  The  usual  statement  of  the  general  principle, 
as  above  set  forth,  includes  the  condition  that  the  par- 
ties exercising  the  election  shall  be  of  lawful  age.3 
Whether,  in  such  a  case,  the  infant  might  elect  through 
his  guardian,  appears  not  to  be  settled.4  But  even  as- 
suming that  this  could  not  be  done,  it  would  still  appear 
that  the  resulting  inability  to  elect  would  not  in  itself 
change  the  result  as  applied  to  the  question  of  suspen- 
sion. For  it  would  nevertheless  be  the  fact  that  except 
for  the  infancy,  there  would  be  no  suspension.  And  an 
inalienability  occasioned  solely  by  infancy  is  not  of 
such  a  nature  as  to  effect  suspension  in  the  sense  con- 
templated by  the  statute. 

(e)  Revocable  Powers. 

§  267.  It  is  provided  by  the  Real  Property  Law, 
§  148,  that  "  A  power,  whether  beneficial  or  in  trust,  is 
irrevocable,  unless  an  authority  to  revoke  it  is  granted 
or  reserved  in  the  instrument  creating  the  power."    If, 

1  Garvey  v.  McDevitt,  72  N.  Y.  556;  Buchanan  v.  Tebbetts,  69  Hun,  81. 

2  Mellen  v.  Mellen,  139  N.  Y.  210,  220;  Trask  v.  Sturges,  170  N.  Y.  482, 
497 ;  Lane  v.  Albertson,  78  App.  Div.  607,  615.     See  §  286. 

3  Prentice  v.  Janssen,  79  N.  Y.  478,  485;  Mellen  v.  Mellen,  139  N.  Y. 
210,  220;  Trask  v.  Sturges,  170  N.  Y.  482,  497. 

4  McDonald  v.  O'Hara,  144  N.  Y.  566,  569. 


§  270.]      POWERS  OP  SALE,  PROCEEDS  TO  TRUSTEE.         159 

then,  by  the  terms  of  the  instrument  creating  a  power,  it 
is  rendered  revocable  at  the  mere  option  of  the  grantor 
or  others,  it  would  appear  that  it  could  not  in  any  case 
occasion,  or  operate  as  an  element  in  occasioning,  any 
suspension.1 

§  268.  The  foregoing  instances  of  powers  that  do  not 
occasion  suspension  are  given  as  illustrative  examples, 
and  not  as  necessarily  constituting  a  complete  list  of 
all  the  cases  within  the  class. 

Powers  that  do  Occasion  Suspension. 

§  269.  This  class  consists  of  powers  which  involve  an 
absence  of  persons  in  being  wTho  can  convey  an  absolute 
fee  in  possession,  or  which  co-operate  with  other  causes 
to  effect  that  result.  The  brief  headings  of  the  follow- 
ing subdivisions  are  accordingly  intended  to  refer  only 
to  such  powers  as  belong  to  this  particular  class. 

(a)  Powers  of  Sale,  Proceeds  to  Trustee. 

§  270.  Where  there  is  a  power  to  sell  real  property 
at  a  future  date  and  pay  over  the  proceeds  to  a  trustee 
of  an  express  trust  of  such  a  nature  as  of  itself  to  occa- 
sion a  suspension,  the  power  co-operates  to  occasion  a 
suspension  of  the  absolute  power  of  alienation.  Thus, 
a  testator  directed  his  executors  that  four  years  after 
his  decease  they  should  sell  his  real  estate  at  public  or 
private  sale,  and  pay  over  the  proceeds  to  the  Bishop  of 
Raphoe  upon  certain  trusts.  If  the  will  had  directed 
the  proceeds  to  be  paid  over  absolutely  to  the  bishop  for 
his  own  use,  he  could,  as  the  sole  beneficiary  of  the 
power  in  his  own  right,  have  released  his  right  to  the 


1  Compare  the  last  preceding  subdivision,  and  also  §  56,  relating  to  revo- 
cable express  trusts. 


160  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

proceeds  to  the  heirs  of  the  testator,  and  thus  have  per- 
fected in  them  an  absolute  title,  which  could  not  after- 
ward be  defeated  by  the  exercise  of  the  power.  "  But 
the  difficulty  here  is  that  the  proceeds  were  not  to  be 
paid  over  to  the  bishop  in  his  own  right.  They  were 
to  be  paid  to  him  as  a  trustee;  *  *  *  he  was  to 
have  no  personal  or  private  interest  in  the  trust  fund. 

*  *     *     He  could  not,  therefore,  release  to  the  heirs. 

*  *  *  Notwithstanding  anything  he  may  do  during 
the  four  years,  the  executors  must  sell  and  pay  over  the 
proceeds  to  him  or  his  successor,  as  trustee.  Therefore, 
during  the  four  years,  there  are  no  persons  in  being  who 
can  convey  an  absolute  fee  in  possession."  * 

§  271.  The  same  principle  applies  where,  instead  of 
postponing  the  exercise  of  the  power,  the  instrument 
creates  a  power  of  sale  exercisable  at  any  time,  but 
directs  the  donee,  at  the  date  of  actual  sale  or  other 
future  date,  to  pay  the  proceeds  to  the  trustees  of  such 
a  trust  as  to  occasion  suspension,  or  from  that  date  to 
himself  hold  the  proceeds  upon  such  a  trust.  In  this 
case  there  would  be  no  suspension  of  the  absolute  power 
of  alienation  of  the  designated  real  property,  but  there 
would  be  a  suspension  of  the  absolute  ownership  of  the 
proceeds.2  In  order  to  be  valid,  the  suspension  thus 
caused  must  be  duly  confined  within  the  statutory 
period. 

§  272.  It  may  properly  be  said  that  a  suspension 
arising  under  this  subdivision  is  really  caused  not 
directly  by  the  power,  but  by  the  trust  for  the  benefit 
of  which  the  power  is  to  be  exercised,  thus  illustrating 
the  class  of  suspension  treated  in  Chapter  IV. 


1  Garvey  v.  McDevitt,  72  N.  Y.  556 ;  see  Beekman  v.  Bonsor,  23  N.  Y. 
298,  317. 

2  Chapter  VII.,  Allen  v.  Allen,  149  N.  Y.  282  ;  Stoiber  v.  Stoiber,  40  App. 
Div.  156;  Hagemeyer  v.  Saulpaugh,  97  App.  Div.  535,  544. 


§  274.]  POWERS  OF  SALE.  161 

(b)  Powers  of  Sale,  Proceeds  to  Persons  not  in  Being. 

§  273.  Where  there  is  a  power  in  trust  to  sell,  and  an 
imperative  power  to  pay  over  the  proceeds,  at  a  future 
date,  to  all  the  then  living  members  of  a  designated 
class,  including  such,  if  any,  as  were  not  in  being  at 
the  original  creation  of  the  power,  a  suspension  neces- 
sarily results.  Thus,  in  Dana  v  Murray,1  where  such  a 
state  of  facts  existed,  and  the  period  before  the  sale 
could  take  place  and  the  beneficiaries  be  ascertained 
was  not  measured  by  two  lives,  the  court  say :  "  Such 
proceeds  were  directed  to  be  divided  among  all  of  her 
children  who  may  then  be  living,  and  the  issue  of  any 
of  them  who  may  be  dead.  *  *  *  It  follows  that 
the  power  in  question,  under  the  express  provision  of 
the  statute,  is  imperative,  and  its  execution  will  be  com- 
pelled by  the  court ;  and  this  being  the  case,  it  operates 
to  suspend  the  vesting  of  the  fee  until  the  power  is 
executed  or  the  estate  is  terminated." 

§  274.  Here  again,  as  illustrated  in  subdivision  (a) 
supra,  a  mere  unqualified  power  to  sell,  does  not  by 
itself  alone  effect  suspension  of  the  absolute  power  of 
alienation ;  it  is  the  absolute  ownership  of  the  proceeds 
that  is  suspended;  and  it  may  properly  be  said  that 
such  suspension  is  really  caused  not  by  the  power,  but 
by  the  fact  that  the  persons  who,  or  some  of  whom, 
may  become  entitled  in  future  to  receive  the  proceeds, 
are  not  in  being,  thus  illustrating  the  class  of  suspen- 
sion treated  above  in  Chapter  III.2  For  if,  the  other 
facts  being  the  same,  the  particular  individuals  who 
must  certainly  become  entitled  to  receive  the  proceeds 
are  in  being  at  the  creation  of  the  power,  and  are  desig- 


1  122  N.  Y.  604.  613. 

2  Similar  principles  apply  to  dispositions  of  personal  property.     Tucker 
v.  Bishop,  16  N.  Y.  402. 


162  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

nated,  no  contingency  or  suspension  exists;1  while  if 
the  future  interest  is  either  contingent  by  reason  of  the 
fact  that  now  unborn  persons  may  yet  prove  to  be  the 
persons  who  shall  be  entitled  in  their  own  right  to  all 
or  some  part  of  the  proceeds,2  or  is  vested  subject,  prior 
to  the  time  for  distribution,  to  be  divested  in  favor  of 
persons  some  or  all  of  whom  may  be  yet  unborn ; 3  then 
in  either  of  such  cases  a  suspension  exists.4  Though 
if  the  suspension  thus  resulting  is  duly  confined  within 
the  statutory  period,  it  is,  of  course,  not  illegal.5 

§  275.  While  this  subdivision  (b)  includes,  it  is  not 
confined  to,  cases  where  the  exercise  of  the  power  of 
sale  to  raise  the  proceeds  payable  in  future  to  persons 
not  yet  in  being,  is  prohibited  until  a  future  time.6 

(c)  Imperative  Powers  to  Appoint. 

§  276.  The  existence  of  a  trust  power  of  appointment,7 
may  suspend,  or  co-operate  in  suspending,  the  absolute 
power  of  alienation.  Such  a  suspension  exists  where 
the  instrument  by  which  the  power  was  created  impera- 
tively requires  its  exercise  at  a  future  time  in  such  man- 
ner that  in  the  meantime  there  are  no  persons  in  being 
competent  to  in  anyway  override  or  annul  the  power 


1  Goebel  v.  Wolf,  113  N.  Y.  405 ;  United  States  Trust  Co.  v.  Roche, 
116  N.  Y.  120,  130;  Henderson  v.  Henderson,  113  N.  Y.  1;  Kilpatrick  v. 
Barron,  125  N.  Y.  751,  755;  Matter  of  Young,  145  N.  Y.  535. 

2  United  States  Trust  Co.  v.  Roche,  116  N.  Y.  120,  131;  Trowbridge  v. 
Metcalf,  5  App.  Div.  318;  aff'd  158  N.  Y.  682;  Haug  v.  Schumacher^  166 
N.  Y.  506;  Dana  v.  Murray,  122  N.  Y.  604,  617;  Delafield  v.  Shipman, 
103  N.  Y.  463;  Delaney  v.  McCormick,  88  N.  Y.  174. 

3  Haug  v.  Schumacher,  166  N.  Y.  506;  Matter  of  Brown,  154  K  Y. 
313 ;  Trowbridge  v.  Metcalf,  5  App.  Div.  318,  aff'd  158  N.  Y.  682. 

4 Cases  above  cited;  Hone's  Exrs.  v.  Van  Schaick,  20  Wend.  564. 

5  Haug  v.  Schumacher,  166  N.  Y.  506. 

6  Cases  above  cited. 

7  See  Floyd  v.  Smith,  140  N.  Y.  337;  Real  Prop.  L.,  §  158. 


§  278.]  IMPERATIVE  POWERS  TO  APPOINT.  163 

and  effectuate  the  vesting  of  an  absolute  fee  in  posses- 
sion.1 

§  277.  A  power  of  appointment  which  confers  or  im- 
poses upon  the  grantee  thereof  the  right  or  duty  to  him- 
self personally  select  the  appointees,  among  the  mem- 
bers of  a  class,  confers  no  right  on  any  particular  mem- 
ber of  the  class,  prior  to  an  appointment,  to  claim  title 
to  any  part  of  the  property.  When  the  time  for  ap- 
pointment arrives,  the  court  can  compel  an  exercise  of 
the  power,  but  cannot  control  the  discretion  of  the 
grantee  in  the  selection  of  the  appointees.2  Examples 
may  be  found  in  the  case  of  a  power  which  imperatively 
requires  the  future  appointment  of  an  estate  upon  a 
trust  to  receive  and  apply  the  rents  and  profits,  or  an 
appointment  in  favor  of  persons  not  in  being  at  the 
creation  of  the  power.  In  the  meantime,  no  alienation 
is  possible,  and  if  the  duration  of  the  term  is  not  duly 
limited,  the  scheme  is  void.3 

§  278.  "  But  a  power  is  not  bad  for  remoteness,  be- 
cause some  of  the  objects  thereof  are  not  within  the 
limits  allowed  by  law;  for  those  may  be  selected  to 
whom  a  valid  appointment  in  this  respect  may  be  made. 
(Attenbo rough  v.  Atteriborough,  1  K.  &  J.,  29fi;  Hock- 
ley v.  Mawbey,  1  Ves.  150.)  It  would  be  otherwise  if 
the  power  did  not  authorize  an  exclusive  appointment; 


'Imperative  and  discretionary  powers.  Real  Prop.  L.,  §  157;  Dana  v. 
Murray,  122  K  Y.  604;  Hone's  Exrs.  v.  Van  Schaick,  20  Wend.  564. 

2  Matter  of  Stewart,  131  N.  Y.  274,  279,  281.  Real  Prop.  L.,  §§  158,  160. 
Compare  Meldon  v.  Devlin,  31  App.  Div.  146,  affd  167  N.  Y.  573; 
Sweeney  v.  Warren,  127  N.  Y.  426,  433 ;  Towler  v.  Towler,  142  N.  Y. 
371;  Tilden  v.  Green,  130  N.  Y.  29,  46;  Montignani  v.  Blade,  145  N.  Y. 
Ill;  Coleman  v.  Beach,  97  N.  Y.,  545. 

3Hone's  Exrs.  v.  Van  Schaick,  20  Wend.  564,  566;  Garvey  v.  McDevitt, 
72  N.  Y.  556;  Dana  v.  Murray,  122  N.  Y.  604,  617;  Genet  v.  Hunt,  113 
N.  Y.  158.  See  Hillen  v.  Iselin,  141  N.  Y.  365,  379;  Smith  v.  Floyd,  140 
N.  Y.  337.     Effect  of  power,  upon  vesting.     Real  Prop.  L.,  §  41. 


1G4  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

in  such  a  case,  the  appointment  must  necessarily  include 
objects  without  the  limits,  and  the  whole  power  would 
consequently  be  bad."  x  And  even  though  the  terms  of 
the  power  as  created  are  such  as  not  to  require  any  ille- 
gal exercise,  yet  if  the  donee,  in  making  the  appoint- 
ment, does  in  fact  attempt  to  create  an  illegal  suspen- 
sion, the  appointment  so  made  is  void.2 

§  279.  And  inasmuch  as  the  period  of  suspension 
which  results  from  the  making  of  the  appointment,  is 
to  be  computed  as  from  the  time  of  the  creation  of  the 
power,3  it  follows  that  decisions  as  to  validity  of  the 
term  under  an  actual  appointment,  also  determine  the 
validity  of  the  same  provisions,  before  the  power  is  ex- 
ercised, if  imperatively  required  by  the  original  instru- 
ment.4 But  in  any  case  if  the  period  of  suspension  is 
duly  confined  within  the  limits  of  the  statutory  period, 
the  scheme  is  valid  under  Rule  I.5 

§  280.  As  in  subdivisions  (a)  and  (b)  supra,  and  for 
the  same  reasons  there  set  forth,  it  may  be  said  that  the 
suspension  which  may  be  occasioned  by  the  existence 
of  an  imperative  power  of  appointment,  is  caused  not 
by  the  power,  but  by  the  fact  that  the  persons  in  whom, 
or  in  some  of  whom,  the  future  estate  may  become 
vested,  are  not  in  being,  thus  illustrating  the  class  of 
suspension  treated  in  Chapter  III,  or  that  though  in 
being  they  cannot  convey  because  they  are  to  take  under 


1  Farwell  on  Powers,  1st  Ed.,  p.  90. 

2  Genet  v.  Hunt,  113  K  Y.  158  ;  Fargo  v.  Squiers,  154  N.  Y.  250; 
Tweddell  v.  New  York  Life  Insurance  Co.,  49  A  pp.  Div.  258,  262,  aff'd 
166  N.  Y.  608 ;  Farmers'  Loan  and  Trust  Co.  v.  Kip,  192  N.  Y.  266. 

3  Real  Prop.  L.,  §  178. 

4  Genet  v.  Hunt,  113  N.  Y.  158;  Fargo  v.  Squiers,  154  K  Y.  250; 
Hillen  v.  Iselin,  144  N.  Y.  365,  378 ;  Farmers'  Loan  &  Trust  Co.  v.  Kip, 
192  K  Y.  266;  Maitland  v.  Baldwin,  70  Hun,  267. 

6  Hillen  v.  Iselin,  144  N.  Y.  365,  379;  Fargo  v.  Squiers,  154  N.  Y. 
250,  259;  Maitland  v.  Baldwin,  70  Hun,  267. 


§  282.]  IMPERATIVE  POWERS  TO  CONVEY.  165 

a  trust  such  that  a  conveyance  would  be  in  contraven- 
tion of  its  terms,  thus  illustrating  the  class  of  suspen- 
sion treated  in  Chapter  IV. 

(d)  Imperative  Powers  to  Convey. 

§  281.  This  class  differs  from  the  preceding,  in  that 
the  power  does  not  confer  upon  the  donee  the  right  or 
duty  of  selection,  but  requires  a  conveyance,  at  a  future 
time,  to  all  such  persons  as  shall  then  answer  to  a  given 
description.  The  rule  on  this  subject  has  been  stated 
as  follows :  "  Where  a  future  interest  is  devised,  not 
directly  to  a  given  person,  but  indirectly  through  the 
exercise  of  a  power  conferred  upon  trustees,  the  devise 
is  designed  to  be  contingent,  and  survivorship  at  the 
time  of  distribution  is  an  essential  condition  to  the 
acquisition  of  an  interest  in  the  subject  of  the  gift."  x 

§  282.  In  the  case  last  cited,  and  as  applied  to  the 
situation  as  it  actually  existed,  the  devise  was  in  trust 
to  receive  and  apply  the  rents  and  profits  to  the  use  of 
E  for  life  and  if  she  died  without  issue  then  to  the  use 
of  M  for  life,  and  on  M's  death  to  convey  the  remainder 
"  to  the  children  and  lawful  heirs  of  my  brother  H  de- 
ceased, to  share  and  share  alike,  per  stirpes."  E  died 
without  issue,  leaving  M  surviving.  At  the  death  of 
testatrix,  there  were  living  ten  children  of  H,  but  they 
all  died  before  E.  Some  of  them  left  wills  under  which 
any  interest  which  vested  in  them  at  the  death  of  the 
testatrix,  if  any,  would  pass.  At  the  death  of  M  there 
were  living  heirs  of  H.  It  was  held  that  the  remainder 
to  the  heirs  of  H  was  contingent  until  the  death  of  M 
and  then  first  vested  in  the  then  living  heirs  of  IT  and 
that  the  devisees  of  the  children  of  II  took  no  interest. 
It  will  be  noticed  that  if,  instead  of  holding  the  remain- 


1  Matter  of  Bacr,  147  X.  Y.  348,  354. 


166  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

der  contingent,  the  court  had  held  it  to  be  vested,  at  the 
death  of  testatrix,  in  the  children  of  H,  subject  to  being 
divested  either  by  the  death  of  E  leaving  issue,  or  by  the 
death  of  the  respective  children  of  H  before  the  death 
of  E  and  M,1  the  net  result  would  have  been  exactly  the 
same,  namely  that  the  ten  children  having  died  before 
the  time  named  for  the  conveyance  of  the  ultimate  re- 
mainder, their  vested  title  would  have  been  divested, 
and  those  who  were  then  the  heirs  of  H  would  take.2 
So  that  what  Matter  of  Baer  really  holds  is  that  the 
remainder  did  not  vest  absolutely  in  the  children  of  H, 
or  absolutely  in  anyone,  until  it  could  be  known,  at  the 
death  of  M  who  were  the  then  living  heirs  of  H. 

§  283.  The  existence  of  a  power  to  convey  is  men- 
tioned in  the  opinion  in  Townshend  v.  Frommer,3  as  a 
factor  in  the  finding  that  the  vesting  of  such  a  re- 
mainder is  postponed.  But  the  real  reason  lies  in  the 
evident  intent  of  the  testatrix  that  only  those  should 
take  who  should,  at  the  death  of  M,  then  be  H's  living 
heirs,4  and  the  power  to  convey  at  that  time  figures 
merely  as  evidence,  and,  under  the  circumstances  stated, 
as  controlling  evidence  of  that  intent.5  That  this  is 
true,  appears  very  clearly  from  the  fact  that  if  the 
particular  persons  who  would  be  entitled  to  the  con- 
veyance had  been  named,  the  existence  of  the  power  to 
convey  would  not  have  been  inconsistent  with  the 
absolute  vesting  in  interest  of  the  remainder  prior  to 
the  time  for  the  conveyance.6     And  when  the  time  for 


1  As  in  Campbell  v.  Stokes,  142  N.  Y.  23;  Moore  v.  Appleby,  108  N.  Y. 
237;  and  Knowlton  v.  Atkins,  134  N.  Y.  313. 

2  Dougherty  v.  Thompson,  167  N.  Y.  472,  487-8. 
3 125  N.  Y.  446.     Cf.  Real  Prop.  L.,  §  41. 

4  And  see  also  Townshend  v.  Frommer,  125  N.  Y.  446,  460. 

5  Matter  of  Brown,  154  N.  Y.  313,  324. 

6Goebel  v.  Wolf,  113  N.  Y.  405;  Adams  v.  Perry,  43  N.  Y.  487; 
Oilman  v.  Reddington,  24  N.  Y.  9;  Wilber  v.  Wilber,  165  N.  Y.  451; 
Matter  of  Young,  145  N.  Y.  535. 


§  284.]  IMPERATIVE  POWERS  TO  CONVEY.  167 

such  a  conveyance  does  arrive,  and  irrespective  of 
whether  or  not  the  persons  then  entitled  to  possession 
have  theretofore  been  ascertained  or  not,  the  remainder 
vests  in  possession  automatically,  without  the  need  of 
any  actual  conveyance-1 

§  284.  Under  the  present  subdivision,  if  a  suspension 
exists,  its  cause  is  found  in  the  fact  that  for  all  that  is 
now  known  to  the  contrary,  or  can  be  determined,  the 
persons  to  whom  a  conveyance  is  to  be  made  when  the 
time  comes,  as  purchasers  in  their  own  right,  may  be 
persons  not  now  in  being.2  This  principle,  so  far  as 
concerns  suspension  of  the  absolute  power  of  alienation, 
harmonizes  all  the  cases.3  Similar  principles  apply  to 
an  imperative  power  to  convey  to  a  trustee  to  hold  upon 
such  a  trust  as  to  effect  a  suspension.  But  the  fact  that 
a  remainder  is  given  to  a  designated  person,  to  vest  in 
possession  at  a  future  date,  or  in  case  of  his  prior  death 
to  his  then  living  issue,  does  not  necessarily  create  a 
suspension,  for  the  meaning  may  be  that  the  remainder 
is  to  vest  absolutely  in  the  person  named,  the  reference 
to  the  issue  being  intended  to  emphasize  the  fact  that 
they  are  to  take,  not  as  "  purchasers  "  but  merely  by 
right  of  succession  to  their  parent.4  Under  that  con- 
struction, the  first  taker  could  dispose  of  the  future 
estate  absolutely,  and  the  "  issue  "  would  have  no  inde- 
pendent rights  whatever  under  the  original  instrument. 


'Watkins  v.  Reynolds,  123  N.  Y.  211;  Miller  v.  Wright,  109  N.  Y. 
194,  200;  Bruner  v.  Meigs,  64  N.  Y.  506;  Campbell  v.  Stokes,  142  N.  Y. 
23,  29;  Smith  v.  Floyd,  140  N.  Y.  337. 

2  Dana  v.  Murray,  122  N.  Y.  604,  617. 

3  Campbell  v.  Stokes,  142  N.  Y.  23;  Moore  v.  Appleby,  108  N.  Y.  237 
(36  Hun,  368);  Knowlton  v.  Atkins,  134  N.  Y.  313;  Paget  v.  Melcher, 
156  N.  Y.  399 ;  McGillis  v.  McGillis,  154  N.  Y.  532,  and  other  cases  above 
cited,  many  of  which  illustrate  the  presence  or  absence  of  a  suspension, 
though  not  any  question  of  undue  suspension. 

4Gilman  v.  Reddington,  24  N.  Y.  9,  16. 


1G8  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

§  285.  Thus  as  in  subdivision  (b)  and  in  part  under 
subdivision  (c)  supra,  cases  under  this  subdivision  (d) 
illustrate  the  class  of  suspension  treated  in  Chapter 
III.  Even  if,  in  a  given  case,  and  under  the  foregoing 
principles,  suspension  of  the  absolute  power  of  aliena- 
tion does  exist,  yet  if  it  is  confined  within  the  statutory 
period,  it  is  of  course  not  illegal. 

(e)  Non-Terminable  Powers  to  Sell  in  Future. 

§  286.  Inasmuch  as  the  absence  of  suspension  under 
certain  powers  of  sale  to  be  exercised  in  the  future  only, 
for  designated  living  beneficiaries,  is  due  to  a  presump- 
tion that  the  postponement  of  sale  was  not  intended  to 
actually  prevent  the  beneficiaries,  if  they  preferred,  from 
overriding  and  annulling  the  power,1  it  follows  that  if 
that  presumption  is  negatived,  in  the  instrument  which 
creates  the  power,  by  an  express  and  explicit  declara- 
tion to  the  contrary,  then  the  right  to  override  it  does 
not  exist,  and  accordingly  a  suspension  of  the  absolute 
power  of  alienation  results. 

§  287.  For  to  the  due  execution  of  a  power  there 
must  be  a  substantial  compliance  with  every  condition 
required  to  precede  or  accompany  its  exercise,  and  to 
this  end  such  exercise  must  comply  with  the  spirit  as 
well  as  the  letter  of  the  power.2  And  "  except  as  pro- 
vided in  this  article  3  the  intentions  of  the  grantor  of  a 
power  as  to  the  manner,  time  and  conditions  of  its  exe- 
cution must  be  observed ;  *  *  *  ." 4  And  thus,  it 
has  been  held,  the  grantee  of  a  power  in  trust  given  ex- 


>See  §265.  Mellen  v.  Mellen,  139  K  Y.  210,  220;  Trask  v.  Sturges, 
170  N.  Y.  482,  497;  Lane  v.  Albertson,  78  App.  Div.  605,  615;  Hetzel  v. 
Barber,  69  N.  Y.  1,  11-12. 

5  Harris  v.  Strodl,  132  N.  Y.  392. 

3  See  Real  Prop.  L.,  §§  163,  170.  171. 

4  Real  Prop.  L.,  §172. 


§  288.]    NON-TERMINABLE  POWERS  TO  SELL  IN  FUTURE.    169 

plicitly  upon  condition,  and  only  upon  condition,  that 
it  shall  not  be  exercised  until  a  future  time,  cannot 
exercise  it  in  the  meantime,  and  the  beneficiaries  can- 
not annul  it,  because  the  presumption  that  the  creator 
of  the  power  did  not  intend  to  confine  them  strictly  to 
taking  the  property  in  its  converted  form  only,  is  de- 
stroyed by  the  explicit  expression  of  a  contrary  design. 
And  if  the  term  during  which  the  absolute  power  of 
alienation  is  thus  suspended  is  not  duly  measured  by 
lives  in  being,  the  entire  power  is  void.1 

§  288.  "  The  time  when  the  power  is  to  be  executed 
may  be  material  to  its  validity.  There  are  no  means  by 
which  alienation  can  be  suspended  beyond  the  period 
prescribed  in  the  first  article ;  and  we  shall  find,  I  think, 
the  same  difficulty  on  that  point,  when  the  case  is  ex- 
amined under  the  doctrine  of  powers,  that  was  pre- 
sented when  considering  it  as  an  express  trust  under 
the  55th  section.  The  power  can  only  be  executed  at 
the  time  and  in  the  manner  prescribed  by  the  testator. 
*  *  *  [Hillen  v.  ZseZm,  144  N.  Y.  365,  373].  By  the 
will  the  final  distribution  is  to  be  made  and  the  convey- 
ances executed  '  at  the  expiration  of  the  period  herein 
prescribed  for  the  continuance  of  the  trust.'  It  can 
only  be  done  when  all  the  minorities  shall  have  ceased ; 
and  if  no  one  can  in  the  meantime  convey  an  absolute 
fee  in  the  land,  then  we  have  already  seen  that  the 
power  of  alienation  is  suspended  for  a  longer  period 
than  the  statute  allows.  *  *  *  What  kind  of  a  fee 
can  be  conveyed  so  long  as  a  power  exists  by  which  it 
may  be  utterly  defeated?    It  surely  is  not  an  absolute 


1  Matter  of  Butterfield,  133  N.  Y.  473  (59  Hun,  153,  sub  nom.  Matter 
of  Christie);  Hetzel  v.  Barber,  69  N.  Y.  1,  12;  Beekman  v.  Bonsor,  23 
N.  Y.  298,  317;  Blanchard  v.  Blanchard,  4  Hun,  287,  aff'd  70  N.  Y.  615. 
See  also  Haug  v.  Schumacher,  166  N.  Y.  506,  512;  Buchanan  v.  Tebbetts, 
69  Hun,  81 ;  Smith  v.  Farmer  Type  Founding  Co.,  16  App.  Div.  438. 


170  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

fee.  The  power  by  which  the  new  estates  are  to  be 
created  cannot  be  released  or  in  any  way  destroyed" 
Bronson,  J.,  in  Haicley  v.  James.1  To  the  same  effect 
is  the  decision  in  Hone's  Executors  v.  Van  Schaick.2  In 
both  these  cases,  the  suspension  was  held  to  arise  out 
of  the  particular  provisions  of  the  wills  in  hand,  render- 
ing imperative  a  sale  at  and  not  before  a  future  date 
not  limited  by  two  lives. 

§  289.  An  unlawful  restriction  upon  the  exercise  of  a 
power  of  sale  during  a  term  not  measured  by  two  lives 
in  being,  cannot  be  cut  out  of  a  testamentary  scheme 
and  disregarded,  in  order  to  save  the  power  itself,  where 
the  power  as  given  is  explicitly  made  conditional  upon 
its  non-exercise  during  more  than  two  lives  in  being, 
and  where  its  elimination  would  destroy  the  general 
scheme  of  the  will  and  frustrate  the  testator's  general 
purpose.3  But  if  its  elimination  would  not  produce 
such  a  result,  then  it  may  be  cut  out  and  disregarded.4 
Here  also  should  be  considered  the  class  of  cases  sug- 
gested by  Professor  Reeves,5  of  a  powers  of  appointment 
or  disposition  granted  to  a  person  not  yet  in  being. 

§  290.  But  it  is  now  necessary  to  notice  that  the  gen- 
eral drag-net  prohibition  formerly  contained  in  1  R.  S. 
723,  §  15,  to  the  effect  that  "  the  absolute  power  of 
alienation,  shall  not  be  suspended  by  any  limitation  or 
condition  whatever,"  beyond  the  statutory  period,  has 
been  omitted  from  the  Real  Property  Law,  §  42,  which 
now  seems,  so  far  as  its  own  mere  phraseology  goes,  to 
deal  only  with  such  suspension   as  is  occasioned   by 


1 16  Wend.  61,  175. 

s  20  Wend.  564. 

3  Matter  of  Butterfield,  133  N.  Y.  473. 

♦Haug  v.  Schumacher,  166  N.  Y.  506,  512,  514. 

8  2  Real  Property,  §  966. 


§  293.]  POWERS  THAT  OBVIATE  SUSPENSION.  171 

future  estates.  This  subject  is  discussed,  in  another 
connection,  in  preceding  sections.1  The  omission  of  the 
drag-net  prohibition  renders  it  difficult  to  deal  with  the 
class  of  cases  now  under  consideration.  If  in  any  given 
state  of  facts  such  a  power  of  future  disposition  may  be 
said  to  exist  for  the  purpose  of  effecting  the  creation 
by  its  exercise,  of  a  future  estate,  so  that  the  possible 
postponement  thereof  beyond  the  statutory  period  would 
render  such  potential  estate  itself  void,  and  so,  by  in- 
direction, invalidate  the  power  which  existed  only  to 
effectuate  its  creation,  it  might  of  course  be  said,  in  a 
sense,  that  the  power  attempted  an  illegal  postpone- 
ment.2 In  the  present  state  of  the  law,  the  governing- 
principles  in  this  field  are  somewhat  obscure. 

§  291.  Unlike  the  cases  covered  by  subdivisions  (a), 
(b),  (c)  and  {d)  supra,  those  covered  by  this  subdivi- 
sion (e)  may  illustrate  a  class  of  suspension  which  is 
caused  solely  by  the  existence  of  the  power  and  the  pro- 
hibition of  its  exercise  until  a  future  time,  and  not  at 
all  by  the  existence  of  any  express  trust  or  contingency. 

§  292.  The  foregoing  instances  of  suspension  by 
powers  or  in  direct  connection  with  powers,  are  given 
as  illustrative  examples,  and  not  as  necessarily  consti- 
tuting a  complete  list  of  all  the  cases  within  the  class. 

Powers  that  Obviate  Suspension. 

§  293.  A  suspension  of  the  absolute  power  of  aliena- 
tion which  would  be  occasioned  by  certain  provisions 
of  an  instrument,  if  considered  by  themselves  alone, 
may  sometimes  be  obviated  by  an  accompanying  provi- 
sion creating  a  power.  For  instance,  an  express  trust 
of  the  third  class,  to  receive  and  apply  rents  and  profits, 


1  §§  222-237. 

2  See  Poal  Property  Law,  §  179. 


172  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

if  considered  by  itself,  effects  a  suspension.  But  if  the 
instrument  also  confers  upon  the  trustee  an  unrestricted 
power  to  convey  the  real  property,  free  from  the  trust, 
there  is  obviously  a  person  in  being  by  whom  an  abso- 
lute fee  in  possession  can  be  conveyed,  and  therefore, 
so  far  as  concerns  the  real  property  affected  by  the 
power,  there  is  no  suspension.1 

The  ' '  Statutory  Period  "  as  to  Powers. 

§  294.  By  §  178  of  the  Real  Property  Law  it  is  pro- 
vided that  "  The  period  during  which  the  absolute  right 
of  alienation  may  be  suspended,  by  an  instrument  in 
execution  of  a  power,  must  be  computed,  not  from  the 
date  of  such  instrument,  but  from  the  time  of  the  crea- 
tion of  the  power."  2  "  The  time  of  the  creation  of  the 
power  "  means,  in  case  it  was  created  by  will,  the  death 
of  the  testator,  and  in  case  it  was  created  by  deed,  then 
the  time  of  the  conveyance  creating  the  power.3 

§  295.  For  the  purpose,  as  would  appear,  of  estab- 
lishing some  convenient  specific  formula  for  the  actual 
application  of  this  statutory  rule,  the  courts  have  fre- 
quently stated  the  terms  of  §  178  in  other  language, 
sometimes  in  one  form,  and  sometimes  in  another. 
Some  of  these  statements  adhere  very  closely,  in  sub- 
stance, to  the  terms  of  the  statute.  Thus  in  Hillen  v. 
Iselin*  it  is  said  that  "  It  is  well  settled  that  the  time 
of  the  suspension  of  the  power  of  alienation,  where  ap- 


1  See  §  42  et  seq. 

2  Farmers'  Loan  &  Trust  Co.  v.  Kip,  192  N.  Y.  266;  Matter  of  Harbeck, 
161  N.  Y.  211;  Mott  v.  Ackerman,  92  N.  Y.  539,  549;  Dana  v.  Murray, 
122  N.  Y.  604;  Genet  v.  Hunt,  113  N.  Y.  158,  169.  So  also  as  to  personal 
property.  Fargo  v.  Squiers,  154  N.  Y.  250;  Matter  of  Pillsbury,  50  Misc. 
367;  113  App.  Div.  893,  and  186  N.  Y.  545. 

3  Hillen  v.  Iselin,  144  N.  Y.  365,  378.  See  Real  Prop.  L.,  §  179;  also  id. 
§§  131,  144,  151. 

*  144  N.  Y.  365,  378. 


§  296.]      THE  "STATUTORY  PERIOD"  AS  TO  POWERS.       173 

pointments  of  future  estates  have  been  made  under  a 
power,  which  are  claimed  to  be  void  for  remoteness,  is 
to  be  measured  from  the  death  of  the  testator,  or,  in 
the  case  of  deeds,  from  the  time  of  the  conveyance.  For 
the  purpose  of  determining  whether  there  has  been  an 
unlawful  suspension  of  the  estates  created  under  a 
power,  they  are  considered  as  having  been  created  when 
the  will  or  deed  took  effect."  And  in  Beardsley  v.  HotcJi- 
kiss,1  it  is  said  that  "  we  must  go  back  to  the  date  of 
the  ante-nuptial  contract  [which  created  the  power 
there  in  question]  and  see  if,  computing  from  that  date, 
there  has  been  an  illegal  suspension  of  the  absolute 
power  of  alienation  *  *  *  ."  But  in  other  state- 
ments of  the  rule,  a  different  formula  has  been  laid 
down.  This  formula  is,  that  the  validity  of  the  term 
must  be  tested  by  reading  the  provisions  into  the  instru- 
ment by  which  the  power  was  created,2  as  if  they  had 
been  actually  incorporated  therein  at  the  time  of  its 
execution.3 

§  296.  Thus  under  both  formulas  the  term  of  a  sus- 
pension occasioned  by  the  provisions  of  the  later  and 
subsidiary  instrument,  like  the  term  of  any  suspen- 
sion occasioned  by  the  provisions  of  the  earlier,  is  to  be 
computed  from  the  time  of  the  creation  of  the  power; 
and  the  difference  between  the  two  tests  is  found  in  the 
fact  that  while  the  first  leaves  the  two  instruments  to 
be  contemplated  as  still  separate,  though  co-operating, 
when  the  power  has  in  fact  been  exercised,  to  produce 
a  total  joint  scheme  of  disposition,  the  second  contem- 
plates the  provisions  of  the  later  instrument  as  if  they 


>96K  Y.  201,  214. 

5  Fargo  v.  Squiers,  154  N.  Y.  250,  259 :  Tweddell  v.  New  York  Life  Ins. 
Co.,  49  App.  Div.  258,  262,  aff'd  166  N.  Y.  608. 

3Maitland  v.  Baldwin,  70  Hun,  267,  270;  Genet  v.  Hunt,  113  N.  Y.  158, 
168,  170;  Matter  of  Ilarbeck,  161  N.  Y.  211,  218,  220. 


174  SUSPENSION  OCCASIONED  BY  POWERS.  [CH.  V. 

had  been  originally  incorporated  bodily  into  the  earlier, 
thus  putting  the  case  as  if  there  were  only  one  instru- 
ment to  be  considered,  containing  in  itself  a  complete 
and  final  scheme  of  disposition  matured  and  announced 
as  an  entity  from  the  beginning. 

§  297.  As  applied  to  most  cases  to  which  the  statu- 
tory rule  relates,  this  "  reading-in  "  formula  is  undoubt- 
edly correct,  and  the  employment  of  it  would  lead  to 
the  same  result  as  would  the  use  of  the  statutory  rule 
for  measuring  the  period  merely  by  computation  "  from 
the  time  of  the  creation  of  the  power."  But  it  is  be- 
lieved that  there  is  at  least  one  class  of  cases  where  the 
use  of  the  "  reading-in  "  formula  would  lead  to  a  differ- 
ent and  incorrect  result.  The  rule  relating  to  these 
exceptional  cases  may  be  summarized  as  follows :  Where 
of  two  instruments,  the  one  creating  a  power  of  disposi- 
tion and  the  other  exercising  it,  the  former  by  its  own 
terms  occasions  a  suspension  for  one  life  and  the  latter 
attempts  by  its  own  terms  to  occasion  a  suspension  for 
two  lives,  in  being  at  the  creation  of  the  power,  and  the 
result  of  incorporating  the  provisions  of  the  later  into 
the  earlier  would  be  to  eliminate  from  consideration  the 
provisions  which  occasion  the  suspension  under  the 
earlier  instrument,  the  reading-in  formula  is  inappli- 
cable.1 

§  298.  "  An  estate  or  interest  can  not  be  given  or 
limited  to  any  person,  by  an  instrument  in  execution  of 
a  power,  unless  it  would  have  been  valid,  if  given  or 
limited  at  the  time  of  the  creation  of  the  power."  2  If 
however,  the  provisions  of  the  instrument  which  creates 


'A  full  discussion  of  this  subject  will  be  found  in  10  Columbia  Law 
Review,  495. 

"Real  Prop.  L.,  §  179;  also  id.  §§  42,  131,  144;  Genet  v.  Hunt,  113 
N.  Y.  158;  Fargo  v.  Squiers,  154  N.  Y.  250. 


§  298.]        THE  "  STATUTORY  PERIOD  "  AS  TO  POWERS.        175 

a  power  are  such  that  the  grantee  of  the  power,  by  force 
of  Real  Property  Law,  §§  149-153,  becomes  thereby 
automatically  vested  with  an  absolute  fee,1  it  seems 
that  the  power  as  such  disappears,  and  the  owner  of  the 
fee,  if  he  aliens,  does  so  as  owner,  and  not  as  grantee  of 
the  power;  and  therefore  the  period  of  any  suspension 
effected  by  his  deed  or  will  is  to  be  computed  from  its 
own  date,  and  not  from  that  of  the  creation  of  the 
power.2 


1  See  id.  §  151.     Matter  of  Moehring,  154  N.  Y.  423,  427. 

2  Cutting  v.  Cutting,  86  K  Y.  522,  536 ;  Farmers'  Loan  &  Trust  Co.  v. 
Kip,  192  N.  Y.  266;  Deegan  v.  Wade,  144  N.  Y.  573,  577-8;  Hume  v. 
Randall,  141  X.  Y.  499;  Freeborn  v.  Wagner,  2  Abb.  Ct.  App.  Dec.  175, 
183;  Crooke  v.  Co.  of  Kings,  97  K  Y.  421,  435;  Weinstein  v.  Weber,  178 
N.  Y.  94,  100;  Wendt  v.  Walsh,  164  N.  Y.  154, 159;  Ackerman  v.  Gorton, 
67  N.  Y.  63;  Matter  of  Gardner,  140  N.  Y.  122;  Taggart  v.  Murray,  53 
N.  Y.  233;  Woodbridge  v.  Bockes,  59  App.  Div.  503,  aff'd  170  N.  Y.  596; 
Coleman  v.  Beach,  97  NV  Y.  545 ;  Swarthout  v.  Ranier,  143  N.  Y.  499 ; 
Rose  v.  Hatch,  125  N.  Y.  427,  433,  and  cases  cited ;  Ryder  v.  Lott,  123 
App.  Div.  685, 199  N.  Y.  543 ;  Hasbrouck  v.  Knoblauch,  130  App.  Div.  378 ; 
Genet  v.  Hunt,  113  N.  Y.  158,  166,  168,  170. 

If  a  given  suspension  is  occasioned  not  by  an  instrument  in  execution 
of  a  power,  but  by  the  existence  of  the  power  to  execute  such  an  instru 
ment,  the  authorized  term  is  still  governed,  directly  or  indirectly,  either 
by  Real  Prop.  L.,  §  42,  or  by  id.  §§  178-179. 

See  the  following  as  to  a  devise  or  bequest  to  one,  with  remainder  over, 
of  "  what  may  remain  "  at  the  death  of  the  first  taker.  Seaward  v.  Davis, 
198  N.  Y.  415;  Crozier  v.  Bray,  120  N.  Y.  366;  Van  Home  v.  Campbell, 
100  N.  Y.  287 ;  Norris  v.  Beyea,  13  N.  Y.  273 ;  Wager  v.  Wager,  96  N.  Y. 
164;  Terry  v.  Wiggins,  47  N.  Y.  512;  Smith  v.  Bell,  6  Pet.  68;  Colt  v. 
Heard,  10  Hun,  189;  Greyston  v.  Clark,  41  Hun,  125;  Wells  v.  Seeley,  47 
Hun,  109;  Leggett  v.  Firth,  53  Hun,  152,  and  132  N.  Y.  7;  Kelley  v. 
Hogan,  71  App.  Div.  343;  Campbell  v.  Beaumont,  91  N.  Y.  464;  Matter 
of  Gardner,  140  N.  Y.  122;  Rose  v.  Hatch,  125  N.  Y.  427,  433;  Tuthill  v. 
Davis,  121  App.  Div.  290;  Oxley  v.  Lane,  35  N.  Y.  340,  348;  Jones  v. 
Jones,  66  Wis.  310;  Swarthout  v.  Ranier,  143  N.  Y.  499;  Smith  v.  Van 
Ostrand,  64  N.  Y.  278;  Bliven  v.  Seymour,  88  N.  Y.  469,  478;  Crain  v. 
Wright,  114  N.  Y.  307;  Haynes  v.  Sherman,  117  N.  Y.  433;  2  Reeves, 
Real  Property,  §  903,  note  (a)  and  §  954. 


CHAPTER  VI. 

POSTPONEMENT    OF    VESTING. 

Rule  II.    Vesting. 
Historical. 

The  General  Statutory  Scheme. 
"Remainders." 

"  Within"  the  Statutory  Period. 
"Must  Vest."     "If  Ever." 
Must  Vest  "in  Interest." 

Sources  of  Rule  II. 

Remainder  on  a  Fee. 

Remainder  on  an  Estate  for  Life. 

Remainder  on  a  Term  of  Years. 

Remainder  on  Estate  in  Trust. 

Remainder  on  Execution  of  Power. 

Remainder  in  Default  of  Appointment. 

Remainder  to  a  Class. 
The  Statutory  Period  for  Postponement. 

§  299.  Rule  II.     Estates  in  remainder  shall  be  so 

LIMITED   THAT   WITHIN   THE   STATUTORY   PERIOD,   IF   EVER, 
THEY  MUST  VEST  IN  INTEREST. 

This  Rule,  as  already  set  forth  in  the  first  chapter, 
differs  from  Rule  I  in  this :  Rule  I,  applying  to  all 
estates  and  interests,  present  and  future,  calls  for  alien- 
ability by  the  end  of  the  "  statutory  period,"  and  calls 
for  nothing  more.  If  all  the  estates  and  interests,  actual 
and  potential,  are  alienable,  so  that  an  absolute  fee  in 
possession  can  be  conveyed,  there  is  no  infraction  of 
Rule  I.  Rule  II,  on  the  other  hand,  applying  only  to 
what  it  refers  to  as  "  remainders,"  requires  that  in  addi- 
tion to  being  alienable  they  shall  also  be  so  limited  that 
they  will  certainly  vest,  if  ever,  by  the  end  of  the 
"  statutory  period." 

176 


§  300.]  HISTORICAL.  177 

Now  the  view  has  been  advanced  by  some  writers, 
that  there  is  no  such  general  principle  in  the  law  of 
New  York,  as  that  embodied  in  Rule  II,  and  that  the 
only  general  rule  in  this  field  is  found  in  the  statutes 
represented  by  Rule  I,  and  is  confined  to  the  subject  of 
alienability  only. 

Historical. 

§  300.  This  view  that  there  is  no  such  Rule,  appears, 
at  least  in  part,  to  be  based  on  the  supposition,  here- 
after considered,  that  at  the  time  when  our  Revisers 
were  framing,  and  the  Legislature  enacting,  the  sections 
of  the  Revised  Statutes  which  deal  with  these  matters, 
it  was,  or  at  least  was  still  generally  supposed  to  be, 
the  common  law,  that  the  established  Rule  against  Per- 
petuities was  confined  to  the  requirement  of  absolute 
alienability,  and  that  it  was  only  later  that  it  came  to 
be  recognized  by  the  English  courts  that  the  Rule  had 
a  relation  to  required  vesting  of  future  estates.  Accord- 
ingly, the  argument  appears  to  be  that  the  Revisers, 
presumably  having  the  then  accepted  view  of  the  law 
in  mind,  must  have  intended  to  confine  their  proposi- 
tions likewise  to  the  field  of  alienability  only,  and  that 
thus  the  statutory  provisions,  now  found  in  the  Real 
Property  Law,  which  seem  to  have  any  bearing  on  the 
subject  of  the  necessity  of  vesting  within  the  statutory 
period,  are  to  be  understood  as  intended,  and  as  operat- 
ing, solely  to  attain  some  other  ends,  and  not  to  require 
such  vesting  at  all. 

Now  it  is  believed,  as  fullv  set  forth  in  the  first  edi- 
tion  of  this  book,  twentv  years  ago,  that  the  statutes  of 

7  t/       */  C7       7 

New  York  do  fully  establish  the  proposition  embodied 
in  Rule  II,  in  addition  to  that  embodied  in  Rule  I.  In 
order  to  hold  this  latter  view,  it  is  not  necessarv  to  do- 
termine  just  when  it  was  that  the  English  Rule  against 


178  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

Perpetuities  came  to  be  generally  recognized  as  a  rule 
relating  directly  to  vesting.  For  one  thing,  as  will  be 
seen  later,  th<>  whole  subject  of  the  enforced  vesting  of 
future  estates,  was  a  matter  of  general  investigation 
and  study,  both  here  and  abroad,  in  the  period  which  in- 
cluded the  preparation  of  our  Revision,  and  what  the 
English  courts  worked  out,  at  least  soon  after  that 
time,  without  the  aid  of  legislation  and  so  upon  the 
theory  that  it  had  always  been  the  law,  may  conceiv- 
ably enough  have  presented  itself  in  the  same  light  to 
the  minds  of  our  learned  Revisers,  and  have  been 
adopted  by  them,  on  that  theory  and  in  modified  form, 
in  their  draft.  And  if,  on  the  other  hand,  it  were  clear 
that  they  looked  on  the  Rule  against  Perpetuities,  as 
then  existing,  as  one  having  no  concern  with  the  subject 
of  vesting  as  such,  it  is  also  conceivable  that  they  may 
have  thought  it  capable  of  improvement  by  new  provi- 
sions on  that  subject.  They  never  hesitated  to  propose 
desirable  modifications  in  any  field,  and  the  statutes 
they  drafted  are  full  of  provisions  changing  the  earlier 
law. 

The  suggestions  they  did  in  fact  make  with  reference 
to  the  vesting  of  "  remainders,"  and  the  provisions 
they  drafted  with  that  end  in  view,  the  Legislature  en- 
acted. That  these  sections  make  up  a  general  Rule, 
under  which  all  remainders,  to  be  valid,  must  be  so 
limited  that  they  will  certainly  vest,  if  ever,  by  the  end 
of  the  statutory  period,  is  a  proposition  recognized  by  a 
series  of  important  adjudications.  In  view  of  the  na- 
ture of  the  relationship  1  between  our  present  law  in 
New  York,  and  that  which  existed  prior  to  the  time  of 
our  Revision,  it  would  not  be  appropriate,  for  the  pur- 
poses of  this  volume,  to  attempt  any  detailed  examina- 
tion of  the  earlier  law,  in  order  to  ascertain  from  a 


Supra,  §  15. 


§  300  a.]  HISTORICAL.  179 

present  point  of  view  what  the  law  in  that  field  then 
actually  was.  But  what,  on  the  other  hand,  it  was 
currently  thought  to  be,  in  general  outline,  as  set  forth 
by  those  who  wrote  on  the  subject  prior  to  the  time  of 
our  Revision  and,  with  reference  to  that  time,  during 
some  few  years  thereafter,  may  be  profitably  examined 
for  any  light  that  may  thus  be  thrown  on  the  codifica- 
tion, with  changes,  which  was  prepared  by  our  Revisers. 
Within  these  boundaries,  therefore,  the  statement  which 
occupies  the  following  sections,  from  §  300  a  to  §  301  g, 
has  been  confined,  and  no  attempt  has  been  made  to 
pass  upon  the  nierits  of  the  several  views  and  argu- 
ments concerning  the  exact  origin  and  precise  form  of 
the  common  law  Rule  against  Perpetuities.  The  direct 
discussion  of  the  New  York  law  as  such,  is  resumed  in 
§  302. 

§  300  a.  In  the  earlier  davs,  then,  of  the  English 
law,  there  was,  in  any  strict  sense,  no  rule  against  per- 
petuities. For  in  connection  with  the  forms  of  disposi- 
tion then  in  use,  and  the  general  impracticability  of  lim- 
iting a  remainder  upon  a  fee,  or  a  contingent  freehold 
remainder  upon  a  term  of  years,1  and  the  facility  with 
which  estates  tail,  and  remainders  limited  thereon,2 
or  on  a  life  estate,  could  be  barred,  there  was  no  special 
occasion  for  any  such  rule.3  Such  needs  as  were  then 
felt,  for  protection  against  what  were  regarded  as  the 
most  objectionable  forms  of  ordinary  effort  to  obstruct 


1 II  Reeves,  Real  Property,  §  901 ;  Gray,  Perpetuities,  2nd  Ed.,  §§  191- 
192. 

2  Fearne,  Con.  Rem.  423;  Williams  on  Real  Prop.,  17th  Ed.,  107 and  433, 
note. 

s  Thus  the  fact  that  at  that  time  the  interests  represented  by  contingent 
remainders,  as  later  by  various  forms  of  executory  limitation,  could  not, 
while  the  vesting  remained  doubtful,  be  directly  transferred  (though  by 
indirection  similar  results  could  be  attained),  was  considered  harmless. 
Lewis,  Perpetuities,  Supp.  14. 


180  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

the  free  and  advantageous  ownership,  enjoyment  and 
employment  of  property,  were  supplied,  in  addition  to 
the  principles  already  mentioned,  by  various  rules,  the 
actual  soundness  of  some  of  which  has  since  been  gener- 
ally denied.  Illustrations  of  such  principles  are  to  be 
found  in  the  restrictions  against  remainders,  after  a 
grant  to  an  unborn  person  for  life,  to  that  person's 
children,  or  in  Lord  Coke's  rule  against  a  "  possibility 
on  a  possibility."  x  Opinions  of  distinguished  writers  on 
the  common  law  differ  concerning  the  exact  relation  of 
this  earlier  state  of  the  law,  with  its  own  forms  of  pro- 
tection, established  or  tentative,  against  its  own  prob- 
able dangers,  to  the  later  rules  which  were  slowly 
formulated  to  meet  new  conditions,  as  new  forms  of 
executory  disposition,  to  which  the  old  safeguards  did 
not  apply,  came  to  be  recognized  by  the  courts.  These 
matters  are  very  fully  and  clearly  discussed  in  the 
works  of  Sugden,  Humphreys,  Hargrave,  Lewis,  Wil- 
liams and  Challis. 

§  300  b.  Mr.  Lewis,  whose  admirable  "  Treatise 
on  the  Law  of  Perpetuities,  or  Remoteness  in  Limita- 
tions of  Estates  "  under  the  English  law  was  published 
in  1843,  after  giving  a  valuable  exposition  of  the  growth 
of  the  law  says :  "  Thus  have  we  traced  the  gradual 
progress  of  the  rule  of  law,  on  the  subject  of  remoteness 
of  future  executory  limitations,  from  the  Reign  of 
James  I,  in  which  the  case  of  Pells  V.  Brown,  ( Cro.  Jac. 
590;  1  Eq.  Abr.  187,  c.  4)  occurred,  down  to  the  year 
1833,  when  the  case  of  Cadell  v.  Palmer  (7  Bligh  N.  S. 
202)  was  decided.  We  have  seen  the  limits  of  the  rule 
now  extended,  and  now  contracted,  according  to  the 
nature  of  the  judges'  notions  of — convenience,  (Lord 
Nottingham's  unerring  pole-star  for  the  guidance  of 

1  Lewis,  Perpetuities,  Supp.  97-107;  Gray,  Perpetuities,  2nd  Ed.  §§  288- 
294. 


§  300  c]  HISTORICAL.  181 

the  judicial  mind !)  ;  at  one  time  they  have  now  received 
extension  by  mere  operation  of  law;  at  another,  they 
have  oscillated  uncertainly,  between  conflicting  con- 
structions of  the  very  terms  in  which  they  have  been 
defined;  until,  at  last,  and  by  imperceptible  degrees, 
two  centuries  of  doubt  and  argumentation  have  enabled 
judicial  wisdom,  (unaided  by  Legislative  interposi- 
tion), to  frame  and  complete  that  important  article  in 
our  jurisprudential  code,  known  by  the  name  of  the 
'Rule  against  Perpetuities.'  "  x 

§  300  c.  Now  as  applied  to  the  period  when  our 
Revision  was  drafted  and  enacted,  and  as  bearing  on 
what  it  probably  was  that  the  Revisers  were  attempting 
to  accomplish  in  this  field,  there  have  been,  or  have  been 
said  to  be,  at  least  three  theories  concerning  the  nature 
of  the  Rule  against  Perpetuities,  as  follows : 

(1)  That  what  the  Rule  required,  by  the  end  of  its 
established  period,  was  alienability,  and  nothing  else. 
In  support  of  this  proposition  it  has  been  said,  by  some 
writers,  that  the  great  authority  of  Sugden  may  be 
cited.2 

(2)  That  what  it  required  was  vesting,  and  nothing 
else.3 

(3)  That  what  it  required  was  that  the  estate  in 
question  should  either  be  vested  or  be  subject  to  de- 
struction at  the  option  of  the  owner  of  some  estate  that 
was  vested.  This  is  the  view  of  Lewis,4  of  Marsden,5 
and  of  Challis.6 


'Lewis,  Perpetuities,  161. 

2  Cole  v.  Sewell,  4  Dr.  &  Warr.  1,  28;  Sugden's  note  to  Gilbert  on  Uses, 
p.  119. 

3  This  supposed  view  seems  to  have  been  sometimes  attributed  to  Lewis, 
and  Marsden.     But  see  the  next  subdivision,  (3). 

4  Perpetuities,  164. 

6  Perpetuities,  2,  165. 

6 Real  Property,    2nd  Ed..  159.   168-171,    185.       See  quotation,  infra, 
§  301  g,  and  §§  300  d,  301  c,  301  e. 
There  is  also  a  view,   to  be  classified,  perhaps,  under  (2)  or  (3)  above, 


182  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

This  statement  of  different  views,  in  a  rough  general 
form,  is  set  forth  here,  for  one  reason,  to  call  special 
attention  to  the  manner  in  which,  from  a  period  prior 
to  onr  Revision,  as  shown  by  citations  in  later  sections, 
the  changes  have  been  rung,  in  connection  with  state- 
ments of  the  Rule,  first  on  vesting  and  then  on  alien- 
ability, and  then  on  vesting  again,  and  then,  while 
future  estates  were  destructible,  on  their  destructibility. 
Another  reason  for  dwelling  on  the  classification  is  to 
show,  with  reference  to  those  who,  like  Mr.  Lewis  and 
Mr.  Marsden,  hold  what  might  be  called  the  vesting  or 
destructibility  view,  that  their  arguments  cannot  be 
met  by  classifying  their  view  under  (2)  as  in  favor  of 
vesting  only,  and  then  presenting,  as  opposed  thereto, 
cases  where  destructibility  satisfied  the  Rule.  That  is 
what  those  writers  say.1 

Mr.  Lewis,  whose  work  on  Perpetuities  was  pub- 
lished less  than  fifteen  years  after  the  date  of  adoption 
of  our  Revision,  states,  as  applied  to  a  period  extending 
back  further  than  that  date,  that  the  Rule  was  not  satis- 
fied by  alienability  through  a  concurrence  of  the  owners 
of  vested  and  contingent  estates,  but  required  that 
future  limitations,  whether  executory  or  by  way  of  re- 
mainder, and  of  either  real  or  personal  property,  must, 
to  be  valid,  either  be  limited  to  vest,  if  ever,  by  the  end 
of  the  period  contemplated  by  the  Rule,  or  else  be  such 
that  the  persons  entitled  for  the  time  being  to  the  prop- 
erty which  was  subject  to  the  future  limitations  could 
themselves  effect  the  destruction  of  the  future  limita- 
tions, at  their  own  option,  without  any  need  of  the  con- 


that  the  Rule  simply  did  not  apply  at  all  to  future  dispositions  that  were 
either  vested  or  destructible,  because  they  had  no  need  of  it,  and  therefore 
furnished  nothing  for  the  Rule  to  act  on.     Compare  §  300  d,  infra. 

1  Professor  Gray's  special  view  is  set  forth  in  his  Rule  against  Perpetui- 
ties, 2nd  Ed.,  §  204. 


§  300  e.]  HISTORICAL.  183 

currence    of    the    individuals    interested    thereunder.1 
This  matter  is  more  fully  discussed  in  later  sections. 

§  300  d.  There  have  also  been  statements  from 
very  high  authorities,  that  the  Rule  against  Perpetui- 
ties never  had  anything  to  do  with  remainders,  in  any 
event.  This  view  is  rejected  by  other  learned  writers, 
and  it  may  be  that  the  difference  of  opinion  is  due,  at 
least  in  part,  to  a  mere  difference  in  terms  and  defini- 
tions.2 The  existence  of  the  view  referred  to  is  of  in- 
terest for  its  possible  bearing  upon  the  form  of  the  pro- 
visions adopted  by  our  Revisers. 

§  300  e.  We  have,  therefore,  for  brief  considera- 
tion, as  applied  to  the  time  of  our  Revision,  the  subjects 
of  alienability  and  of  vesting,  and  in  connection  there- 
with the  subject  of  the  former  destructibility  of  future 
estates,  as  an  element  of  the  Rule  against  Perpetuities. 
And  it  is  to  be  noticed  that  whatever  the  differences  in 
forms  of  statement,  it  is  undoubted  that  the  Rule  did 
aim,  for  at  least  one  of  its  main  purposes,  at  the  free- 
dom of  control  and  disposition  represented  by  alien- 
ability, and  also  that  it  recognized  as  at  least  one  means 
to  that  end,  the  feature  of  vesting.  Thus  it  is  natural 
that  some  statements  of  the  Rule  should  appear  to 
dwell  on  alienability,  without  pausing  to  distinguish 
between  mere  alienability  in  whosesoever  hands  exist- 
ing, and  alienability  solely  by  owners  already  vested 
with  title  or  able  to  become  vested  at  their  own  option. 

1  Lewis,  Perpetuities,  1G4.  Marsden,  Perpetuities,  p.  2,  accepts  this 
definition  of  Mr.  Lewis  as  satisfactory.  Also  id.,  p.  165;  Challis,  Real 
Property,  168-171. 

2  Challis  held  this  view.  Real  Property,  159.  As  he  apparently  placed 
it  on  the  ground,  similar  to  that  mentioned  in  §  300  c,  supra,  that  it  did  not 
apply  because  there  was  no  need  for  it,  the  whole  matter  being  sufficiently 
covered  by  other  principles,  his  position  was  entirely  consistent  with  his 
other  view  that  the  Rule  required  either  vesting  or  destructibility.  See 
infra,  §§  301  b,  301  c.     Also  Lewis,  Perpetuities,  Supp.,  97-153. 


184  POSTPONEMENT  OF  VESTING.  [CH.  VI- 

Other  statements  are  more  explicit  on  these  points,  and 
while  confining  the  Rule  to  alienability  through  vested 
owners,  recognize  its  purpose  as  extending  beyond  the 
attainment  of  mere  alienability  to  reach  cases  of  con- 
tingent though  alienable  interests,  because  they  tend 
to  clog  or  obstruct,  even  though  not  to  actually  prevent, 
the  free  control  represented  by  alienability  through 
absolute  vested  ownership. 

§  300  /.  In  1822,  in  England,  Mr.  Henry  Randell 
published  a  brief  essay  on  Perpetuities.  He  says,  on 
page  88,  that  the  principle  of  the  Rule  extends  only  to 
cases  "  where  estates  are  so  limited  that  the  power  of 
alienation  is  taken  away."  That  remark  might  be 
classified  under  view  (1)  or  view  (3)  above.1  He  does 
not  there  explain  the  sense  in  which  he  uses  the  term 
"  power  of  alienation,"  but  on  pages  4S  and  49,  he  had 
already  defined  a  perpetuity  as  "  any  limitation  tend- 
ing to  take  the  subject  of  it  out  of  commerce  for  a  longer 
period  than  a  life  or  lives  in  being,"  etc.,  and  added 
that  "  it  is  not  sufficient  that  an  estate  may  vest  within 
the  time  allowed,  but  the  rule  requires  that  it  must.''''  2 
This  essay  of  Mr.  Randell  is  not  mentioned  in  the  Re- 
visers' Notes.  They  do,  however,  refer  to  the  Law 
Tracts  edited  by  Mr.  Hargrave  and  published  in  1787. 
One  of  these,  beginning  at  page  513,  contains  an  illumi- 
nating statement  of  that  writer's  views  on  the  early 
establishment  of  the  principle  of  law  that  a  strict  en- 
tail could  be  destroyed  after  the  life  of  the  tenant  for 
life  in  possession  and  the  attainment  of  majority  by 
the  first  issue  in  tail ;  that  when  executory  devises  came 
in,  similar  methods  of  restriction  were  needed ;  that  by 
analogy  it  was  at  length  settled  in  the  form  of  a  similar 
but  not  identical  rule,  that  the  longest  period  for  vesting 


1  §  300  e. 

2  Italics  not  in  original. 


§  300  g]  HISTORICAL.  185 

of  an  executory  devise  should  be  any  life  or  lives  in 
being  and  twenty-one  years  after,  with  allowance  for 
the  period  of  gestation.  These  observations  Mr.  Har- 
grave  repeated  in  1798  in  his  argument  in  Thellusson 
v.  Woodford.1  In  1842,  in  his  Treatise  on  the  Thellus- 
son Act,  §  57,  he  puts  the  same  matter  thus :  "  The  rule 
against  perpetuities  fixes  the  period  during  which  the 
vesting  of  a  valid  executory  devise  or  springing  use  may 
be  postponed."  In  1831,  Mr.  Hayes  published  in  Lon- 
don a  work,  not  mentioned  by  the  Revisers,  on  real 
property,  in  which  2  he  refers  to  the  Rule  against  Perpe- 
tuities in  terms  which  instead  of  implying  the  suffici- 
ency of  any  kind  of  alienability  to  satisfy  it,  appears  to 
dwell  on  the  likelihood  of  interference  with  free  hand- 
ling of  property  by  owners  as  one  of  the  matters  to  be 
controlled. 

§  300  g.  Fearne,  whose  work  on  Contingent  Re- 
mainders the  Revisers  refer  to,  rests  the  Rule  3  which 
required  executory  devises  to  take  effect  "  within  a 
short  space  of  time,"  upon  "  the  privilege  of  executory 
devises  which  exempts  them  from  being  barred  or  de- 
stroyed." He  says,  that  otherwise  it  would  be  within 
a  testator's  power  to  limit  an  estate  so  as  to  make  it 
unalienable  for  generations  to  come,  for  "  every  execu- 
tory devise,  so  far  as  it  goes,  creates  a  perpetuity,  that 
is,  an  estate  unalienable  till  the  contingency  be  deter- 
mined one  way  or  another."  The  illustration  given  by 
Fearne,4  is  a  limitation  to  A  in  fee,  and  upon  failure  of 
A's  issue  at  any  time,  to  B,  a  living  person,  as  showing 
a  provision  void  for  remoteness,  as  to  B5 

1  4  Vea.  227;  11  Ves.  112;  Juridical  Arguments,  Vol.  II,  p.  62  (London, 
1799). 

2  Page  79,  note. 

8  4th  English  Ed.  (1791),  pp.  314,  315;  8th  English  Ed.  (1826)  p.  430. 

4  Id. 

5  See  §  301  c,  infra. 

Also  to  the  same  effect  Marsden   Perpetuities,   51.     Butler's  note  to 


186  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

§  300  h.  Another  work  to  which  the  Revisers  re- 
fer in  their  Notes,  and  from  which,  as  they  state,  they 
drew  in  substance  some  of  their  proposed  statutory  pro- 
visions, was  published,  in  England,  in  its  second  edi- 
tion, in  1827,  by  Mr.  Humphreys.  Brougham,  in  his 
famous  speech  in  Parliament,  published  in  London,  in 
1827,  as  "  Observations  on  the  Actual  State  of  the  Eng- 
lish Laws  on  Real  Property;  with  Outlines  for  a  Sys- 
tematic Reform,"  and  also  mentioned  by  the  Revisers, 
pays  a  high  tribute  to  the  work  of  Mr.  Humphreys ;  and 
the  Revisers  acknowledge  their  special  indebtedness  to 
him.  Mr.  Humphreys  1  reviews  the  law  of  estates  tail, 
and  the  way  in  which  they  had  gradually  become  "  ex- 
tendible "  into  a  fee  simple  and  capable  of  alienation 
"  in  particular  cases  and  modes ;  "  the  growth  of  spring- 
ing uses,  and  executory  devises,  and  their  limitation  to 
lives  in  being  and  a  further  allowance  in  case  of  in- 
fancy, by  "  an  alleged  analogy  to  settlements  by  entail," 
with  variations.2 

§  300  i.  With  the  facts  already  stated  in  mind, 
the  bearing  of  the  then  existing  law,  and  of  Mr.  Hum- 
phreys' proposed  changes  in  it,  upon  the  form  and  mean- 
ing of  our  Revision  are  apparent.  Thus  in  one  place,3 
in  speaking  of  the  law  of  powers,  as  it  then  stood,  and 
with  reference  in  particular  to  perpetuities,  he  dwells 
both  upon  alienability,  and  upon  vesting  as  a  means  of 
obviating  undue  protraction  of  inalienability. 

Fearne,  562  (h)  subd.  II,  explains  that  in  fixing  a  boundary  beyond  which 
executory  limitations  should  not  be  permitted  to  operate,  the  courts  pro- 
ceeded by  analogy  to  the  existing  legal  effect  of  settlements  limited  to  one 
for  life,  remainder  to  his  children  in  tail.  This  is  the  generally  approved 
view.  Fowler,  Real  Property  Law,  3rd  Ed.,  p.  265;  Reeves,  Real 
Property,  2nd  Ed.  §  956.  The  Revisers  expressed  their  adherence  to  it,  in 
their  Notes. 

1  Real  Property,  Part  I,  Title  III,  Chap.  II,  p.  31  et  seq. 

5  See  also  Brougham's  Speech,  London,  1828,  Edition  of  Henry  Col- 
burn,  p.  54. 

3  Title  IV,  Chapter  I,  sect.  6,  p.  97-8. 


§  300/]  HISTORICAL.  187 

§  300  /".  And  in  Part  II  of  his  work,  devoted  to 
"  Suggested  Remedies  for  the  Defective  State  of  the  Laws 
of  Real  Property,"  Mr.  Humphreys  sets  forth  the  follow- 
ing, numbered  51,  as  a  general  suggestion  for  statutory 
enactment :  "  Land,  or  any  profits  thereof,  may  be 
aliened,  either  in  possession,  or  to  take  effect  on  the 
death  of  the  donor,  or  of  any  third  person,  who  may 
actually  have,  or  may  acquire  a  life  interest  therein, 
either  by  prior  title  or  under  [Mr.  Humphreys'  preced- 
ing] Art.  49,  to  any  person  or  class  of  persons,  who  may 
be  living  or  be  conceived,  when  the  disposition  shall 
vest  in  possession.  Any  such  interests  may  either  be 
absolute,  or  may  be  rendered  defeasible,  if  the  donee  or 
donees  shall  die  under  the  age  of  twenty-one  years ;  or  on 
the  happening  of  any  other  event  before  his  or  their 
attaining  that  age ;  or  with  reference  to  whom  any  event 
shall  or  shall  not  happen  before  that  period.  Alter- 
native dispositions  are  allowed  of  land,  to  take  effect  if 
any  limitations  under  this  article  shall  fail  to  vest 
absolutely;  but  all  such  dispositions  to  take  place  after 
the  absolute  vesting  of  any  such  preceding  limitations, 
or  beyond  the  period  within  which  the  same  are  con- 
fined, are  utterly  void."  And  in  proceeding  to  explain 
this  suggested  form  of  enactment,  Mr.  Humphreys 
says: *  "  Article  51  is  framed  with  a  view  to  correcting 
and  defining  the  terms  of  the  more  modern  mode  of  set- 
tlement by  executory  disposition.  The  abuse  at  present 
practiced  of  protracting  the  power  to  aliene  by  means 
of  mere  nominees,  unconnected  with  the  estate,  is  pre- 
vented by  Art.  49,  which  regulates  the  disposition  of 
life  interests,  and  by  the  article  now  under  discussion, 
which  confines  all  present  or  future  interests2  within 
the  true  limits  of  our  existing  law  of  executory  dispo- 
sitions."    The  alternative  dispositions  provided  for  in 


1  Page  285. 

9  Italics  not  in  the  original. 


188  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

Art.  51  "  may  be  repeated  to  any  number  of  donees  in 
existence  and  their  respective  issue;  ever  observing  the 
rule,  that  the  land  must  vest  absolutely  in  any  issue 
unborn  when  the  instrument  takes  effect,  on  its  attain- 
ing twenty-one ;  and  thus  all  the  subsequent  limitations 
will  be  defeated." 

§  301.  Passing  from  the  works  published  prior  to  the 
time  of  the  Revision,  and  thus  available  for  the  study 
of  the  Revisers,  to  those  issued  not  long  thereafter  and 
undertaking  to  state  the  law  concerning  the  period  in 
which  the  Revision  was  adopted,  we  find  that  the  Com- 
missioners whose  appointment  to  inquire  into  the  law 
of  England  relating  to  real  property  was  referred  to  by 
our  own  Revisers  in  their  Notes,  were  then  preparing 
and  submitting  their  Reports.  Without  the  need  of 
holding  too  closely  to  the  literal  meaning  of  their  words, 
it  is  certain  that  they  use  phraseology  which  would  at 
least  suggest  the  subject  of  the  necessity  of  vesting,  as 
where  they  say  in  their  Third  Report,1  that  "  the  rule 
requires  that  it  should  be  absolutely  certain  that  the 
estate  should  vest  within  the  proper  period ; "  and  in 
their  appended  "  Propositions "  they  lay  down  pro- 
posed formulations  of  rules  for  "  the  period  during 
which  the  vesting  of  a  future  estate  or  interest  *  *  * 
may  be  suspended,"  including  one  that  "  every  such 
future  estate  or  interest  which  shall  not  be  made  to 
vest  within  that  period  shall  "  with  exceptions,  be  void; 
and  that  "  a  contingent  remainder  or  other  future  es- 
tate or  interest,  the  vesting  of  which  shall  be  suspended 
during  a  life  or  lives  arbitrarily  taken  for  the  purpose 
of  such  suspension,  shall  be  void,"  and,  "  that  a  power 
so  made  that  it  may  be  exercised  at  any  time  beyond  the 
period  allowed  for  suspending  the  vesting  of  a  future 
estate  *  *  *  shall  *  *  *  be  void,"  and  so  on  through 

1  Submitted  subsequent  to  the  Revision.     Italics  not  in  original. 


§  301  a.]  HISTORICAL.  189 

many  separate  propositions  each  dwelling  on  the  de- 
sirability of  insisting  upon  vesting  by  the  end  of  the 
authorized  period. 

§  301  a.  The  treatise  of  Mr.  Lewis  (1843)  which  has 
already  been  referred  to  was,  with  what  in  apparent 
reference  to  Mr.  Randell's  Essay  Mr.  Lewis  calls  "  one 
inconsiderable  exception,"  the  first  ever  published 
(apart  from  works  on  other  general  subjects  which  con- 
tained brief  allusions  to  the  topic),  upon  the  Rule 
against  Perpetuities.  The  remarks  of  its  very  learned, 
accurate  and  able  author,  show  in  themselves,  as  do 
those  of  the  earlier  writers  already  referred  to,  and 
quite  apart  from  any  question  of  the  intrinsic  merits 
of  their  views,  that  throughout  the  general  period  dur- 
ing a  part  of  which  our  Revision  was  under  preparation, 
the  topic  of  the  dangers  incident  to  contingent  estates 
if  not  subjected  to  proper  restrictions  and  limits,  was 
under  active  discussion.1 

In  1844  2  a  statute  was  enacted  which  attempted  to 
get  rid  of  contingent  remainders  by  forbidding  their 
further  creation,  or  turning  them  into  executory  limi- 
tations. Later  this  act  was  repealed  3  as  from  the  time 
of  its  taking  effect.4 

In  1849,  Mr.  Lewis  published  a  Supplement  to  his 
work  on  Perpetuities,  in  one  chapter  of  which  he  con- 
siders the  two  subjects  of  alienability  as  such,  and  of 
vesting,  being  the  matters  which  our  Revisers,   some 


1  The  final  closing  of  the  terms  of  the  Rule,  to  which  Mr.  Lewi9  refers 
in  words  quoted  ahove  in  §  300  b,  he  places  at  1833,  only  three  or  four 
years  after  that  enactment.  Cf.  Fowler,  Real  Property,  3rd  Ed.  p.  266. 
The  case  then  decided,  operated  to  define  certain  features  relating  to  the 
limits  of  the  term  allowed,  but  did  not  change  the  previously  accepted 
definition  and  scope  of  the  Rule. 

1  7  &  8  Vict.  c.  76. 

3  8  &  9  Vict.  c.  106. 

4  Lewis,  Perpetuities,  Supplement,  Chapter  VI. 


190  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

twenty  years  prior  to  that  time,  had  dealt  with  in  a 
different  manner  and  in  distinct  statutory  provisions 
embodied  in  our  Rule  I,  requiring  alienability,  and 
Rule  II,  requiring  vesting,  by  the  end  of  the  statutory 
period.  What  he  there  said  is  of  general  interest,  by 
way  of  analogy,  and  in  several  respects  of  contrast,  in 
connection  with  our  own  somewhat  similar  statutory 
scheme. 

§  301  b.  "  The  object  of  the  inquiry,"  he  says, 
"  which  formed  the  subject  of  this  chapter,  was  to  trace 
out  the  circumstances  which  first  manifested  the  neces- 
sity for  a  rule,  restraining  within  reasonable  limits  the 
remoteness  of  executory  limitations,  and  were  conse- 
quently the  cause  of  its  introduction.  This  investiga- 
tion established  that  the  doctrine  of  the  indestructibility 
or  indefeasibleness  of  executory  limitations,  was  the  im- 
mediate producing  cause  of  the  Rule  against  Perpetu- 
ities. *  *  *  there  is  nothing  in  this  conclusion  at  all 
incompatible  with  the  doctrine  maintained  in  that  chap- 
ter, that  contingent  remainders  are  within  the  Rule 
against  Perpetuities.1 

"  Statutes  have  recently  been  passed  2  to  enable  per- 
sons entitled  to  contingent  and  executory  interests  in 
land,  or  interested  under  contingent  or  executory  limi- 
tations of  land,  to  alienate  and  dispose  of  those  inter- 
ests, so  as  to  make  the  disposition  valid  and  effectual  at 
law,  which,  by  the  rules  of  the  common  law,  could  not 
be.  And  it  becomes  important  to  consider  whether  this 
alteration  of  the  law  at  all  affects  the  stringency,  or 
contracts  the  scope  of  the  Rule  against  Perpetuities, 
the  provisions  of  which  are  designed  to  promote  and  to 
secure  freedom  of  alienation.  *  *  *  We  find,  then,  that 
the  law  now  recognizes  a  general  unlimited  power  of 


1  See  In  re  Ashforth,  L.  R.  (1905)  1  Ch.  Div.  535. 

2  7  &  8  Vict.  c.  76,  s.  5;  8  &  9  Vict.  c.  106. 


§  301  c]  HISTORICAL.  191 

alienation,  by  instrument  inter  vivos,  over  future  inter- 
ests in  land  of  all  sorts,  not  being  mere  expectancies  or 
hopes  of  succession  dependent  on  an  unaccrued  title  or 
character.  *  *  *  [And  by  7  Wm.  4,  and  1  Vict.  c.  2G, 
s.  3  the]  power  of  disposing  by  will  may  be  considered 
substantially  co-extensive  with  the  power  of  alienating 
by  deed,  given  by  the  subsequent  statutes,  to  which 
reference  has  already  been  made.  *  *  *  It  is  obvious  to 
remark  that  the  limitations,  the  creation  of  which  it  has 
been  and  is  the  object  of  the  Rule  against  Perpetuities 
to  confine  within  definite  limits,  are  the  very  same  class 
of  interests  which,  when  created,  were  for  the  most  part 
(as  above  sketched)  inalienable  by  the  rules  of  the 
common  law.  *  *  *  The  coincidence  is  interesting  and 
worthy  of  observation,  even  though  we  should  not  be 
able  to  conclude  that  the  rule  against  Perpetuities  was 
a  direct  emanation  of  the  old  doctrine  of  the  inaliena- 
bility of  contingent  interests.  *  *  *  If  all  contingent 
and  executory  interests  in  land  are  now  become  alienable 
both  by  deed  and  will,  whereas  formerly  they  were  (as 
a  general  rule)  not  alienable  at  all,  it  is  (to  say  the 
least)  a  pertinent  question,  whether  the  Rule  against 
Perpetuities — a  rule  which  was  provided  specially  for 
the  regulation  and  control  of  contingent  and  executory 
interests  and  which  applies  to  nothing  else — proceeded 
or  was  grounded  upon  a  consideration  of  their  inaliena- 
bility, or  any  imperfection  proximate  to  that.  It  may 
or  may  not  be  a  notion  which  we  receive  with  respect, 
or  to  which  we  attach  consequence,  but,  to  account  for 
the  introduction  of  a  notice  of  it  here,  the  remark  may 
be  made,  that  such  an  impression  has  in  some  quarters 
existed. 

§  301  c.  "The  question  touches  upon  nothing  less 
than  the  true  meaning  and  occasion  of  the  rule  against 
remoteness.1    Rv  that  rule  the  law  says  in  substance :  No 


See  supra,  §§  20-28;  31-37;  and  infra,  §  313. 


192  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

estate  or  interest  shall  be  so  limited  as  not  to  vest, 
or  not  certainly  (if  at  all)  to  vest,  within  the  compass 
of  a  reasonable  period,  which  reasonable  period  the  rule 
then  proceeds  to  determine  and  mark  out.  The  object 
of  this  rule  is,  to  protect  the  inheritance  from  being  dis- 
turbed and  ripped  open  by  contingent  gifts  of  remote 
possibility.  The  law  desires  that  each  settlement  should 
become  absolute  and  final  in  its  dispositions  of  the  set- 
tled subject  within  the  reasonable  period  which  it  de- 
fines. Whatever  remains  uncertain  and  in  contingency 
affecting  the  ownership,  clogs  the  alienation  and  free 
disposition  of  it.  The  policy  of  the  law  is  satisfied  if 
estates  and  interests  become  vested  or  fixed  within  the 
specified  limits,  because  then  a  period  is  put  to  all  un- 
certainty as  to  where  the  ownership  resides;  there  is 
then  a  point  at  which  all  parties  interested  under  the 
settlement  may  ascertain  and  finally  determine  their 
position,  without  the  chance  of  subsequent  intrusion  or 
alteration.  The  policy  of  the  rule  is  not  satisfied  merely 
by  a  conjunction  of  limitations  which  admits  of  the 
possibility  of  an  early  or  even  an  immediate  alienation 
of  the  whole  estate  by  the  concurrence  of  the  several 
persons  interested  under  them,  although  it  is  true  that, 
in  requiring  an  early  vesting  of  limitations,  the  law  has 
regard  to  the  fact  that,  as  the  result  of  that  vesting,  the 
beneficiaries  will  be  enabled,  by  concurring  in  an  as- 
surance, to  dispose  of  the  whole  interest,  and  so  set  free 
the  inheritance.  If  a  limitation  were  indefinitely  or  re- 
motely contingent  or  executory,  it  would  not  be  a  cir- 
cumstance to  exempt  it  from  the  reason  of  the  doctrines, 
that  it  was  a  limitation  to  a  living  person,  in  a  manner 
or  by  a  form  which  would  enable  him  forthwith  (having 
regard  to  the  altered  state  of  the  law)  to  alienate  such 
contingent  or  executory  interest,  or,  by  joining  in  an 
assurance  with  the  owner  of  the  prior  estate,  to  dis- 


§  301  d.~\  HISTORICAL.  193 

charge  the  property  from  such  contingent  or  executory 
:"   orest. 

"  The  objection  would  still  exist,  that  the  settlement 
was  clogged  with  provisions  for  indefinite  occurrences, 
and  that  the  primary  objects  of  the  settlement  were 
compelled  to  arrange  with  those  who  had  contingencies 
only  and  no  interest,  in  order  to  effect  a  complete  dis- 
position of  the  settled  land.  It  is  not  capacity  to  alien- 
ate each  separate  executory  interest  which  satisfies  the 
doctrine,  but  capacity  of  alienation  of  the  entire  thing 
resulting  from  a  final  vesting  of  determinate  and  un- 
fluctuating estates  in  that  thing.  The  law  proposes  to 
itself  as  a  distinct  and  simple  object,  that  no  land  shall, 
by  deed  or  will,  be  subjected  to  a  complication  of  owner- 
ship, which  can  cause  a  new  right  to  arise  under  it  after 
the  lapse  of  a  reasonable  period.  It  contemplates  also 
that,  as  a  general  result  of  carrying  out  this  its  primary 
and  definite  purpose,  the  alienation  of  the  land  will,  at 
the  expiration  of  the  reasonable  period  in  question,  be 
attainable  by  the  joint  act  or  consent  of  those  who  have 
then  acquired  independent  and  determinate  interests 
as  the  certain  objects  of  the  settlement. 

§  301  d.  "  It  may  be  said  that,  whenever  the  con- 
tingent or  executory  limitation  is  made  to  an  actual 
living  person,  he  has  it  in  his  power  (since  his  interest 
under  that  limitation  is  now  alienable) ,  at  any  time  after 
the  execution  of  the  settlement  to  enable  the  other  per- 
sons interested  to  convey  the  property  away,  and  that, 
consequently,  such  a  case  does  not  at  all,  in  substance, 
differ  from  the  case  of  a  vested  remainder  postponed  to 
a  long  term  of  years,  or  to  some  other  estate  which  may 
not  determine  until  a  remote  period,  where,  although 
actual  enjoyment  under  the  remainder  is  very  distant, 
and  although  without  including  it  no  disposition  of  the 
property  can  be  effected,  yet  the  person  entitled  to  the  re- 


194  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

mainder  lias  it  in  his  power  to  disencumber  the  inherit- 
ance. But  the  answer  is  amply  sufficient  to  this  sug- 
gestion, that  it  disregards  the  essential  distinction  be- 
tween interests  which  are  uncertain  and  may  never  take 
effect,  and  those  which  enter  into  and  form  an  integral 
portion  of  the  single  existing  ownership.  This  is  pre- 
cisely the  distinction  which  the  law  enforces;  it  objects 
to  indefinite  contingencies  being  imported  into  the 
scheme  of  the  settlement,  to  fetter  and  intercept  an  en- 
joyment, which  would  otherwise  be  free  and  unquali- 
fied; and  it  cannot  therefore,  be  an  answer  to  say  that, 
by  arrangement  and  contract,  such  an  indefinite  con- 
tingent or  executory  gift  may  be  got  rid  of,  or  made  to 
assist  in  the  free  alienation  of  the  land. 

"  Moreover,  the  important  fact  is  lost  sight  of  in  argu- 
ments of  this  kind,  that  the  remoteness  which  affects  the 
prospect  of  actual  enjoyment  in  the  case  of  the  vested 
remainder,  is  remoteness  coincident  merely  with  the 
duration  of  some  actually  subsisting  estate  recognized 
by  the  law,  whereas  the  remoteness  of  an  executory 
gift  or  contingent  remainder  (even  though  limited  to  a 
person  who  may  immediately  alienate  it),  is  a  capri- 
cious remoteness  not  representing  the  termination  of 
one  subsisting  estate,  and  the  commencement  in  posses- 
sion of  another,  but  suspended  arbitrarily  as  a  contin- 
gency to  preclude  finality  in  the  working  of  the  settle- 
ment. When  it  is  remoteness  merely  in  the  prospect  of 
enjoyment  resulting  simply  from  the  fact  of  the  previous 
limitation  of  an  actual  effective  interest  which  the  law 
recognizes,  and  corresponding  to  the  natural  limits  and 
duration  of  that  interest,  it  would  be  out  of  all  reason 
to  expect  the  law  to  declare  such  remoteness  in  any  way 
objectionable  *  *  *  It  is  in  no  wise,  however,  a 
consequence  of  this  state  of  things  (but  something  es- 
sentially different),  to  admit  of  the  limitation  of  remote 
interests    (whether  forthwith  alienable  or  otherwise), 


§  301  «.]  HISTORICAL.  195 

in  forms  which  do  not  spring  out  of,  or  take  their  origin 
in,  the  necessary  legal  relation  of  one  estate  which  is 
subsisting,  to  other  interests  which  are  likewise  sub- 
sisting (although  future,  because  subject  and  post- 
poned to  the  former). 

§  301  e.  "  One  other  observation  remains : — The 
test  ordinarily  allowed  for  determining  the  presence  or 
absence  of  the  danger  of  perpetuities  in  respect  of  future 
limitations,  is  not  their  capacity  of  being  alienated,  but 
of  being  destroyed.  Extinction  and  not  co-operation  is 
what  the  law  requires  to  be  attainable,  in  respect  of 
remote  future  estates,  before  it  acknowledges  their  re- 
moteness to  be  harmless.  It  is  to  reverse  the  policy  of 
the  law,  to  rely  on  the  vitality,  for  the  purposes  of  trans- 
fer, of  a  remote  expectancy,  as  a  condition  which  ought 
to  ensure  its  validity.1 

"  If  a  case  be  supposed  of  an  estate  limited  to  arise  and 
take  effect  upon  a  remote  event  or  contingency,  in  such 
a  way  that  it  would  be  uncertain  until  the  actual  happen- 
ing of  that  event  or  contingency,  whether  the  gift  would 
ever  take  effect  at  all,  such  a  limitation,  by  our  law, 
would  be  void,  and  yet  it  would  fall  within  the  provisions 
of  the  new  enactment,  rendering  such  possibilities 
alienable.  Now,  not  any  executory  devise  or  shifting- 
use,  whether  limited  to  a  person  in  esse  or  not,  vests  any 
estate  in  the  party  to  whom  it  is  made,  before  the  event 
on  which  it  depends  has  taken  place.  Supposing,  there- 
fore, an  executory  limitation  so  constructed  that  it  may 
possibly  not  take  effect  until  after  the  limits  of  per- 
petuity are  passed,  it  is,  ex  necessitate,  a  case  where  the 
interest  under  the  limitation  will  remain  unvested  for 


1  Lewis,  Perpetuities,  164;  Marsden,  Perpetuities.  2.  165  ;  Challis, 
Real  Property,  168-171,  185.  Supra,  §  BOO  r.  See  Gray.  Perpetuities, 
2nd  Ed.,  §268,  et  seq.  Mr.  Joshua  "Williams  also  stated  the  matter  in  a 
form  not  inconsistent  with  that  of  Mr.  Lewis.  Williams,  Real  Property, 
1st  Ed.,  pp.  317-318. 


196  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

all  that  time,  and  where,  consequently,  until  such  time 
has  elapsed  there  will  be  no  estate  in  any  one  by  virtue 
of  the  limitation ;  and,  as  the  result  of  such  a  condition 
of  the  gift,  it  must  upon  all  principle  fail  as  being  a 
perpetuity.   *  *  * 

"  The  conclusion,  then,  is,  that  the  circumstance  of 
contingent  and  executory  interests  having  been  rendered 
alienable  at  law  as  well  as  in  equity,  does  not  avail  to 
render  valid  a  contingent  or  executory  limitation  which 
would  in  other  respects  be  too  remote,  even  though  it 
happen  to  be  limited  to  a  person  in  esse  and  ascertained, 
who  might  forthwith  dispose  of  the  interest."  1 

Whatever  may  be  the  proper  view  of  the  original 
applicability  of  the  Rule  to  remainders,  it  is  to  be  noted 
that  when  2  subsequently  created  contingent  remainders 
were  exempted  in  general  from  their  liability,  at  com- 
mon law,  to  be  destroyed  by  the  determination  of  the 
precedent  estate  pending  the  contingency,  the  statute 
extended  the  exemption  only  to  such  contingent  re- 
mainders as  comply  with  the  Rule  against  Perpetuities.3 
Our  Revision,  in  dealing  with  like  exemptions,  had 
already  required  the  vesting  of  remainders  by  the  end 
of  the  same  period  allowed  for  suspension  of  alienability. 

§  301  /.  On  the  general  subject  discussed  by  Mr. 
Lewis  in  the  remarks  quoted  in  the  preceding  sections, 
Mr.  Marsden,  the  author  of  the  later  English  treatise 
on  the  Rule  against  Perpetuities,  says :  "  It  is  not  a 
sufficient  test  of  the  validity  or  remoteness  of  a  limita- 
tion that,  notwithstanding  the  limitation,  the  fee  simple 
or  the  absolute  interest  in  the  property  which  is  the 
subject  of  limitation  can  be  alienated  within  the  legal 
period.  The  books  abound  with  cases  in  which 
limitations  valid  according  to  this  test  have  been  held 


1  Lewis,  Perpetuities,  Supp.,  9-20.     See  II  Reeves,  Real  Property,  959. 

s  By  40  and  41  Vict.  c.  33. 

3  Challis,  Real  Prop.,  2nd  Ed.,  p.  185. 


§30i#.]  HISTORICAL.  197 

void  for  remoteness.  *  *  *  Notwithstanding  the 
elementary  character  of  this  proposition,  it  has  not  al- 
ways been  assented  to;  and  there  are  dicta,  and  even 
decisions,  contradicting  it."  1 

Professor  Gray,  after  mentioning  the  theory  that 
remainders  were  never  subjected  to  the  Rule  against  Per- 
petuities, says :  "  But  it  is  needless  to  discuss  this 
tbeory,  the  unsoundness  of  which  Mr.  Lewis  has  ex- 
posed, for  both  in  England  and  America  contingent  re- 
mainders have  by  statute  ceased  to  be  destructible.  If 
they  were  exempt  from  the  Rule  against  Perpetuities, 
because  they  could  be  destroyed,  now  that  they  have 
become  indestructible  they  must  fall  within  it."  2 

§  301  g.  The  great  authority  of  Challis  is  often  re- 
ferred to  in  support  of  the  proposition  that  the  test,  un- 
der the  Rule  against  Perpetuities,  is  found  not  in  vesting 
or  destructibility,  but  in  bare  alienability.  But  what- 
ever remarks  he  may  have  made  elsewhere  that  might 
suggest  such  a  thought,  he  has  certainly  expressed  the 
contrary  view  very  plainly  in  Chapter  XIV  of  his  work, 
in  the  subdivision  relating  to  the  Rule,3  as  follows: 
"  The  Rule  against  Perpetuities  fixes  certain  limits  of 
time  within  which  every  executory  limitation  not  being 
a  limitation  subject  to  an  estate  tail,  must  necessarily 
vest,  if  it  vests  at  all,  on  pain  of  being  otherwise  void. 
*  *  *  Much  elaborate  effort  has  been  expended  upon  at- 
tempts to  define  a  perpetuity,  and  to  found  the  reason 
of  the  Rule  now  under  consideration  upon  the  defini- 
tion. These  labors  seem  to  be  superfluous.  Without 
any  definition  of  a  perpetuity,  the  proposition  is  easily 
intelligible,  that  all  future  interests  or  claims  in,  to,  or 
upon  any  specified  property,  whether  real  or  personal, 


1  Marsden,  Perpetuities,  51. 

5  Gray.  Perpetuities.  2nd  Ed..  §  2S6. 

3  Real  Property,  2nd  Ed.,  pp.  168-171. 


198  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

which  do  not  arise  under,  or  take  effect  by  virtue  of, 
the  rule  of  the  common  law,  and  are  not  subsequent 
to  an  estate  tail,  must  ( with  a  few  exceptions  requiring 
specific  mention )  vest  absolutely  within  certain  specified 
limits  of  time;  and  the  mischief  which  would  result 
from  the  absence  of  any  such  restriction,  is  too  obvious 
to  need  any  proof.  *  *  *  Not  only  must  the  title 
become  vested  in  an  ascertained  class  of  specified  persons 
within  the  prescribed  period,  but  the  shares  in  which 
the  different  persons  are  to  take  the  property  must 
also  then  be  ascertained;  that  is  to  say,  the  magnitude 
of  the  share  to  be  taken  by  each  member  of  the  class 
must  not  depend  upon  an  event  which  may  happen  be- 
yond the  period  allowed  by  the  rule;  otherwise  the  gift 
will  be  void  for  remoteness."  1 

In  Blight  v.  Hartnoll,  19  Ch.  D.  294,  300,2  Fry,  J., 
says :  "  The  Rule  against  Perpetuities  requires,  in  my 
view,  the  ascertainment  within  the  period,  not  only  of 
the  extreme  limits  of  the  class  of  persons  who  may  take, 
but  of  the  very  persons  who  are  to  take,  and  that  because 
the  Rule  is  aimed  at  the  practical  object  of  telling  who 
can  deal  with  the  property;  and,  if  you  cannot  tell  who 
are  entitled  to  the  property,  but,  only  who  may  become 
entitled  to  the  property,  the  property  is  practically 
tied  up." 

The  General  Statutory  Scheme. 

§  302.  The  notes  and  drafts  of  our  Revisers  show 
that  the  various  considerations  thus  later  discussed  in 
England  were  also  present  to  their  minds,  but  it  also 
appears  quite  clear  that  they  viewed  the  term  "  perpe- 
tuities "  as  properly  confined,  so  far  as  the  mere  matter 
of  names  goes,  to  the  subject  of  alienability.     But  the 


1  Also  cases  cited  in  Mr.  Dale's  12th  English  edition  of  Lew  in  on  Trusts, 
(1911),  p.  109. 

2  Quoted  by  Mr.  Marsden,  Perpetuities,  55. 


§  302.]  THE  GENERAL  STATUTORY  SCHEME.  199 

fact  that  they  looked  upon  requirements  for  vesting,  as 
not  within  the  scope  of  that  particular  term,  does  not 
lead  to  the  conclusion  that  they  considered  such  require- 
ments non-existent.  It  was  open  to  them  to  prefer,  as 
some  writers  have  since  preferred,  while  recognizing 
their  existence,  to  classify  them  by  themselves.  In  any 
event,  as  evidenced  by  what  they  did,  they  considered 
them,  whether  already  represented  in  the  then  existing 
law  or  not,  as  the  proper  subject  for  statutory  treat- 
ment. What  the  English  courts,  whether  earlier  or 
later,  found  it  appropriate  to  do  by  recognizing  a  wider 
scope  to  the  Rule  against  Perpetuities,  the  Revisers  also 
found  it  wise  to  accomplish  by  the  insertion,  in  their 
scheme,  of  a  series  of  separate  provisions,  not  forming- 
part  of  what  they  apparently  regarded  as  a  modified 
Rule  against  Perpetuities;  not  dealing  directly  with 
mere  alienability,  which  they  had  already  sufficiently 
provided  for;  but  confined  by  way  of  an  analogous 
though  distinct  requirement,  to  the  subject  of  postpone- 
ment of  vesting  in  interest.  They  did  not  think  that 
vesting  was  in  itself  essential  to  alienability  for  they  had 
themselves  provided  otherwise  in  what  is  now  §  59  of  the 
Real  Property  Law.  But  they  recognized,  and  expressed, 
the  principle  that  no  amount  of  statutory  authorization 
could  render  a  future  estate  alienable  if  there  were  no 
one  in  being  to  represent  it;  and  this  very  absence  of 
persons  in  being,  and  the  inalienability  resulting  there- 
from, could  be  readily  obviated  by  the  simple  expedient 
of  insisting  upon  vesting.  For  if  an  estate  is  to  vest, 
there  must  be  persons  in  being  for  it  to  vest  in. 

It  is  to  be  remembered,  too,  that  they  were  in  the  act 
of  proposing  radical  changes  affecting  many  of  the 
factors  that  had  always  been  considered  in  connection 
with  the  Rule  against  Perpetuities,  and  involving  ques- 
tions of  vesting,  alienability,  destructibil ity.  Remain- 
ders were  now  no  longer  to  be  "  destructible,"  and  so 


200  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

that  factor  was  eliminated.  Alienability  by  the  end  of  a 
term  to  be  provided  for,  they  had  determined  upon. 
Their  approved  authorities  showed  constant  references 
to  vesting,  sometimes  as  a  factor  of  the  Rule  against 
Perpetuities,  and  sometimes  apparently  as  a  method  by 
which  the  Rule  operated  in  fact  to  obtain  alienability. 

Under  these  circumstances,  the  Revisers  were  not  sat- 
isfied to  leave  the  matter  to  be  controlled  solely  by  their 
sections  relating  to  alienability.  And  so,  perhaps  in 
part  with  the  view  that  it  would  furnish  a  useful 
adjunct  to  their  sections  relating  to  alienability,  in  part 
no  doubt  to  complete  in  technical  detail  their  general 
scheme  of  changes  in  the  real  property  law,  and  in 
part  because  of  the  recognized  desirability  in  gen- 
eral of  early  vesting,  they  adopted  the  provisions  in 
question. 

Thus  in  their  Notes  to  Article  I,  after  speaking  of  the 
earlier  New  York  statute  abolishing  entails  and  effect- 
ing the  destruction  of  attempted  remainders,  they  say 
that r  "  the  object  of  the  legislature  was  to  destroy  per- 
petuities, in  other  words,  to  prevent  the  fee  from  being 
rendered  inalienable  beyond  a  certain  period ;  and  this 
object  is  completely  attained,  if,  without  defeating  the 
remainder,  we  confine  it  to  vest  within  the  period 
allowed  by  law  in  other  cases;  *  *  *."  And  in 
discussing  their  provisions  relating  to  suspension  of  the 
power  of  alienation,  they  make  the  unfortunately 
worded  remark  that  "  to  prevent  a  possible  difficulty 
in  the  minds  of  those  to  whom  the  subject  is  not 
familiar,  we  may  also  add,  that  an  estate  is  never  in- 
alienable, unless  there  is  a  contingent  remainder,  and 
the  contingency  has  not  yet  occurred.  Where  the  re- 
mainder is  vested,  as  where  the  lands  are  given  to  A 
for  life  remainder  to  B  (a  person  then  in  being)  in  fee, 


1  Original  not  italicized. 


§  302.]  THE  GENERAL  STATUTORY  SCHEME.  201 

there  is  no  suspense  of  the  power  of  alienation ;  for  the 
remainderman  and  the  owner  of  the  prior  estate,  by 
uniting,  may  always  convey  the  whole  estate.     This  is 
the  meaning  of  the  rule  of  law  prohibiting  perpetuities, 
and  is  the  effect  of  the  definition  in  §  14."     And  in  deal- 
ing with  their  section  relating  to  alternative  estates,1 
they  give  as  an  illustration  an  estate  to  A  for  life,  and 
if  he  have  any  issue  living  at  his  death,  then  to  such 
issue  in  fee;  but  if  he  die  without  such  issue,  then  to  B 
in  fee,  and  add :  "  Here  the  remainder  to  the  issue  and 
to  B  are  both  contingent,  but  only  one  can  take  effect. 
It  is   obvious  that  these  alternative  dispositions,  how- 
ever numerous  they  may  be,  are  free  from  objection, 
since  as  only  as  one  can  vest,  and  by  vesting,  defeats  all 
that   are   subsequent,    the   estate   is    not    rendered    in- 
alienable for  a  longer  period  than  if  a  single  limitation 
only  had  been  originally  created."     Thus  they  looked 
to  provisions  for  vesting  in  due  time,  as  one  method 
of  guaranteeing  alienability  in  due  time.     Whether  in 
addition  to  various  technical   reasons  incident  to  the 
completion  of  their  proposed  general  scheme,  they  did 
in  fact  contenrplate  all  the  further  reasons  often  since 
enumerated,   and   already   summarized 2    for   requiring 
the  vesting  of  estates  within  restricted  limits  of  time, 
cannot  be  known,  but  in  any  event  those  reasons  exist, 
and  are  most  weighty,  and  in  themselves  fully  justify 
the   statutory   provisions   in   question.      Having,    then, 
fully  provided  in  their  sections  relating  to  suspension 
of  alienability,  the  materials  embodied  in  Rule  I,  the 
Kcvisers  went  on  to  provide,  in  further  sections  relat- 
ing to  vesting,  the  materials  embodied  in  Rule  II,  and 
as  the  two  Rules  had  features,  purposes  and  reasons  for 
their  existence,  which   were  common,  they  gave  them 
both  the  same  statutory  term  for  suspension,  or  post- 


1  Real  Property  Law,  §  51. 
5  §§20-28;  31-37.  301  c;  313. 


202  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

poneinent,  of  two  lives  in  being  and  in  certain  specified 
cases  relating  to  real  property  a  further  minority. 

In  a  sense,  therefore,  the  two  New  York  rules  make  up 
together  one  Rule  against  Perpetuities,  and  in  this  sense 
they  are  frequently  treated  by  the  courts;  in  another 
sense,  one  relates  to  the  subject  of  perpetuities  as  con- 
fined  to   alienability,   and    the   other,   while   allied,   is 
distinct,  and  sometimes  treated  as  not  entitled  to  the 
same  name.     This  is  all  a  mere  matter  of  names  and  of 
no  possible  practical  consequence.1     As  already  stated, 
therefore,   and    to   avoid   confusion,    the   terms   perpe- 
tuities, and  remoteness,  are  not  employed  in  this  volume 
except  in  reference  to  the  English  laws,   and  except, 
also,  as  they  may  happen  to  occur  in  quotations  from 
the  reports.     It  should  also  here  be  noticed  that  Rule 
II,  now  to  be  considered,  affects  merely  the  particular 
class  of  estates,  or  interests,  which  it  refers  to  as  "  re- 
mainders." 2     As  will  be  seen  from  the  following  sec- 
tions, the  existence  under  our  laws,  and  the  scope,  of 
Rule  II,  relating  to  vesting,  are  established  by  a  group 
of  separate   statutory   provisions   which   co-operate   to 
make  up  the  Rule,  and  which  have  been  interpreted  and 
applied  in  numerous  authoritative  decisions.    Although 
the  requirement  of  Rule  II  applies  to  all  remainders, 
compliance  with  it  does  not  of  itself  necessarily  insure 
their  validity.     Some  remainders  are  also  subject  to 
additional   special   requirements,   which   will   be   men- 
tioned in  the  appropriate  connections.     What  is  here 
to  be  considered  is  the  proposition  that  there  is  such 
a  principle  as  that  embodied  in  Rule  II,  in  addition  to 
that  embodied  in  Rule  I. 

§  303.  "  That  it  is  the  application  of  this  provision 
[i.  e.  Rule  I,  Alienability]  which  has  most  frequently 


1  Matter  of  Wilcox,  194  N.  Y.  288,  299. 

2  See  infra,  §  304. 


§  303.]  THE  GENERAL  STATUTORY  SCHEME.  203 

conie  before  the  courts  in  the  determination  of  the 
legality  of  testamentary  dispositions  is  unquestionable, 
and  this  fact  has  led  at  times  to  the  assertion  that  since 
the  enactment  of  the  Revised  Statutes  there  is  only  one 
rule  [Rule  I]  against  perpetuities  in  this  state-"1 
But  such  is  not  the  law  of  New  York.  "  Suspension  of 
the  power  of  alienation  is  not  the  only  factor  in  our 
rule  against  perpetuities."  2  "  The  provision  that  the 
absolute  power  of  alienation  cannot  be  suspended  by 
any  limitation  or  condition  whatever  for  a  longer  period 
than  two  lives  in  being  at  the  creation  of  the  estate  is 
by  no  means  the  only  limitation  placed  by  statute  on 
the  power  of  testators  or  donors  to  fetter  or  tie  up 
estates."  3  Rule  II,  relating  to  vesting,  also  represents 
the  law  in  this  state,  and  "  the  revisers  did  intend,  so 
far  as  remainders  were  concerned,  in  addition  to  the 
provision  against  inalienability,  to  provide  against  re- 
moteness of  vesting  *  *  *." 4  Thus,  "  A  condi- 
tional limitation  to  take  effect,  if  ever,  only  at  the  end 
of  a  period  not  measured  by  two  lives  in  being,  is 
void."  5  And  "  under  the  statute  every  future  estate  6 
which  may  not  vest  within  the  period  of  two  lives  in 
being  at  the  time  of  its  creation,  is  void,  as  is  any  limita- 
tion or  condition,  by  which  the  absolute  ownership  of 
personal  property  may  be  suspended  beyond  the  specified 
period  of  time."  7 


1  Matter  of  Wilcox,  194  N.  Y.  288,  297. 
»  Matter  of  Wiley,  188  N.  Y.  579. 

3  Stoiber  v.  Stoiber,  40  App.  Div.  156.  160. 

4  Matter  of  Wilcox,  194  N.  Y.  288,  298,  wbere  Rules  I  and  II  as  stated 
above,  §§1,4,  are  quoted. 

5  Matter  of  Wiley,  188  N.  Y.  579. 

6  See  infra,  §  304. 

Mlenderson  v.  Henderson,  113  N.  Y.  1,  15;  Matter  of  Wilcox,  194 
N.  Y.  288;  Oxley  v.  Lane,  35  N.  Y.  340;  Knox  v.  Jones,  47  N.  Y.  389; 
Robert  v.  Corning,  89  N.  Y.  225;  Greenland  v.  Waddell,  116  X.  Y.  234; 
Matter  of  Howland,  75  App.  Div.  207;  Dana  v.  Murray,  122  X.  Y.  604, 


204  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

The  statutory  sources  of  the  proposition  embodied  in 
Rule  II  will  be  traced,  and  its  application  illustrated, 
in  later  sections.  Before  doing  so,  it  will  be  convenient 
to  consider  the  meaning  of  certain  terms  employed  in 
the  statement  of  the  Rule,  beginning  with  the  term 
"  Remainders."  1 

"Remainders." 

§  304.  The  family  of  remainders  and  other  future 
estates,  interests  and  possibilities,  has  had  a  varied  and 
troubled  career.  From  the  common  law  remainder  with 
its  narrow  character  strictly  defined,  we  have  now 
evolved  a  class  of  future  estates,  still  called  remainders, 
which  include,  beside  those  formerly  entitled  to  the 
name,  others  which,  though  then  capable  of  creation, 
were  not  designated  as  remainders,  and  still  others 
which  in  earlier  times  could  not  have  been  created  at 
all.  To  just  what  point  all  these  changes  have  brought 
us  at  last,  on  questions  of  terms  and  definitions,  it  is 
not  always  possible  with  certainty  to  say.  Now  Rule 
II,  as  appears  from  its  own  terms,  and  from  some  of  the 
statutes  hereafter  referred  to,  from  which  it  is  derived, 


617-18;  Steinway  v.  Steinway,  163  N.  Y.  183,  195;  Rose  v.  Rose,  4  Abb. 
Ct.  App.  Dec.  108,  114;  Purely  v.  Hayt,  92  N.  Y.  446,  451;  Matter  of 
Thomas,  Tucker,  367.  The  case  of  Sawyer  v.  Cubby,  146  N.  Y.  192, 
should  be  referred  to  as  perhaps  at  variance  with  these  propositions.  The 
decision  in  Sanford  v.  Good  ell,  82  Hun,  369,  cannot  be  sustained  on  the 
ground  of  an  undue  suspension  of  the  power  of  alienation,  for  at  any  and 
all  times  from  the  death  of  the  testator  there  were  designated  persons  in 
being  who  could,  in  conjunction,  have  conveyed  an  absolute  fee  in 
possession ;  and  the  result  reached  by  the  court  can  only  be  supported  on 
the  ground  that  the  ultimate  vesting  of  certain  remainders  might  be  post- 
poned until  the  death  of  three  persons  in  being. 

1  For  interesting  arguments  in  favor  of  the  proposition  that  under  the 
laws  of  New  York  there  is  no  such  thing  as  any  rule  against  postpone- 
ment of  vesting,  as  distinguished  from  the  rule  against  suspension  of 
alienability,  see  Professor  Canfield's  article  in  I  Columbia  Law  Review, 
224;  Fowler,  Real  Property,  3rd  Ed.,  §  42. 


§305.]  "REMAINDERS."  205 

relates  only  to  "remainders,"  and  it  thus  becomes  im- 
portant to  consider  the  sense  in  which  that  term  is  em- 
ployed; and  certain  points  which  in  this  connection  call 
for  special  attention,  will  here  be  mentioned. 

§  305.  In  the  first  place,  according  to  the  present 
statute,  "  Where  a  future  estate  is  dependent  on  a  pre- 
cedent estate,  it  may  be  termed  a  remainder,  and  may 
be  created  and  transferred  by  that  name."  *  This  propo- 
sition includes,  for  example,  conditional  limitations.2 
Now  at  common  law  the  feature  of  being  created  "  at 
the  same  time  "  with  the  precedent  estate  was  one  ele- 
ment of  the  accepted  definition  of  a  remainder.3  This 
element  is  not  specified  in  terms  in  the  section  quoted 
above,  although  the  words  do  appear  in  the  preceding 
section,  in  another  connection.  If  the  same  idea  is 
supposed  to  be  involved  in  any  sense,  in  the  New  York 
statute  itself,  either  in  the  mere  words  "  precedent 
estate  "  or  in  the  mere  word  "  dependent,"  in  any  event 
the  intrinsic  value  of  the  distinction  thus  raised  has 
long  since  disappeared.  For  where,  as  is  now  the  case, 
a  remainder  cannot  be  defeated  by  the  owner  of  the 
precedent  estate,  nor  by  the  destruction  of  the  prece- 
dent estate  in  any  manner  not  provided  for  in  the  in- 
strument creating  it,4  nor  by  the  determination  of  the 
precedent  estate  before  the  happening  of  the  contingency 
on  which  the  remainder  is  limited  to  take  effect.'  and 
where  the  scope  of  the  term  "  remainder  "  has  been  al- 
ready so  far  extended  as  for  example  to  include  the 
limitation  of  a  fee  on  a  fee,6  which  in  one  statutory  pro- 
vision is  referred  to  as  a  "  remainder,"  7  it  can  no  longer 

1  Real  Prop.  L.,  §  38. 

2  Real  Prop.  L.,  §  53.     See  also  id.,  §§  50-58. 

3  4  Kent  Comm.  198. 

4  Real  Prop.  L.,  §57. 

5  Real  Prop.  L.,  58. 

6  Real  Prop.  L.,  §  50. 
'Real  Prop.  L.,  §42. 


20G  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

be  of  real  importance  to  maintain  a  distinction  between 
future  estates  that  are,  and  those  that  are  not,  entitled 
to  the  name  "  remainder." 

§  306.  The  original  Revisers,  in  their  Notes,  after 
referring  to  estates  in  futuro,  as  distinguished  from  re- 
mainders, say  that  "  In  truth,  they  are  in  effect,  though 
not  by  verbal  definition,  remainders,  commencing  in 
possession  on  the  determination  of  the  intermediate 
estate  not  granted  or  devised."  They  also  say,  in  gen- 
eral, that  "  The  principles  by  which  the  Revisers  have 
been  governed,  in  proposing  the  alterations  contained 
in  this  chapter,  and  indeed  throughout  the  Revision, 
may  be  very  briefly  stated.  If  a  rule  of  law  is  just  and 
wise  in  itself,  apply  it  universally,  so  far  as  the  reasons 
upon  which  it  is  founded  extend,  and  in  no  instance 
permit  it  to  be  evaded;  if  it  is  irrational  and  fanciful, 
or  the  reasons  upon  which  it  rested  have  become  obsolete, 
abolish  it  at  once.  *  *  *  Another  most  important 
advantage  to  which  we  have  not  yet  adverted,  will  re- 
sult from  reducing  all  expectant  estates  substantially 
to  the  same  class.  We  shall  prevent  all  future  litigation 
on  the  purely  technical  question,  to  which  class  or  de- 
nomination any  particular  limitation  is  to  be  referred."1 
And  they  also  speak,  in  their  notes,  of  their  purpose  "  to 
reduce  all  expectant  estates  substantially  to  the  same 
class,  and  apply  to  them  the  same  rules  whether  created 
by  deed  or  devise."  And  according  to  Chancellor 
Kent,2  all  expectant  estates  in  the  shape  of  springing  as 
well  as  other  uses,  "  are  in  effect  become  contingent 
remainders  and  subject  precisely  to  the  same  rules." 
And  in  these  carefully  weighed  words  we  probably  have 
the  true  explanation  of  wThat  happened  in  the  drafting 


1  Notes  of  the  Original  Revisers. 

2  4  Comm.  272. 


§307.]  "REMAINDERS."  207 

of  the  Revision.  There  was  apparently  an  intention, 
in  preparing  the  definitions,  to  recognize  the  continu- 
ing existence  of  a  nominal,  or  verbal,  distinction  be- 
tween remainders  and  other  future  estates,  but  to 
recognize  it  for  purposes  of  mere  convenience  of  ref- 
erence only,  and  to  have  the  same  rules  apply  to  all. 
This  seems  to  be  the  explanation  of  the  peculiar  form 
of  the  section  relating  to  remainders. 

§  307.  For  while  "  future  estates  "  are  defined, a  by 
telling  just  what  they  are,  and  reversions  are  defined,  2 
and  vested  future  estates  and  contingent  future  estates 
are  defined,  3  yet  remainders  are  not,  in  that  sense, 
defined  at  all.  All  that  §  38  does,  is  to  say  that  the 
estate  there  referred  to  "  may  be  termed  "  a  remainder, 
and  "  may  be  created  and  transferred  '■  by  that  name. 
This  is  an  odd  form  for  a  definition,  particularly  in 
view  of  the  actual  definitions  which  immediately  precede 
and  follow  it.  But  if  viewed  not  as  a  definition,  but  as 
a  permission  in  specified  cases,  to  use  a  familiar  name 
for  certain  future  estates,  the  form  is  natural,  and  con- 
sistent with  the  remark  just  quoted  from  the  Revisers' 
Notes.  And  the  cases  are  not  free  from  indications 
that  this  view  is  likely  to  prevail  to  a  considerable  ex- 
tent, in  the  interest  of  that  freedom  from  senseless 
technical  distinctions,  of  no  further  practical  use, 
which  the  Revisers  strove  to  attain.  Thus  the  term 
"remaindermen"  has,  as  used  in  another  statutory 
provision,  been  construed  by  the  Court  of  Appeals  to 
have  been  employed  by  the  legislature  "in  the  broad 
sense  of  those  who  might  ultimately  be  entitled  to  take 
the  estate,  whether  they  were  technically  remaindermen 


'Real  Prop.  L.,  §37. 
5  Id.  §  39. 

8  Id.  §  40. 


208  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

under  the  definition  of  the  common  law  or  otherwise."  x 
It  may  therefore  be  that  Rule  II  will  yet  be  applied 
to  all  future  estates,  either  by  way  of  analogy,  2  or  by 
reading  the  statute  in  the  sense  just  suggested.  Indeed 
it  may  be  that  the  courts  have  already  gone  thus  far ; 3 
and  there  appears  in  any  event  to  be  no  doubt  that  the 
term  "  remainder '"  does  at  the  least,  in  the  present 
connection,  include  the  case  of  all  such  future  estates 
or  interests,  created  at  the  same  time  with  an  inter- 
mediate estate,  as  may  yet  ripen,  even  though  in  deroga- 
tion of  the  earlier  estate,  into  an  estate  in  possession.4 
The  mere  fact  that  along  with  such  practical  resem- 
blances to  remainders,  any  such  given  interests  may 
not  as  yet  be  entitled  to  the  name  of  "  estate "  at 
all,  could  not  operate  to  render  them  free  from  the  rules 
applicable  to  remainders,  when  their  very  validity  thus 
permitted  would  result,  if  they  did  not,  for  other 
reasons,  fail  altogether,  in  their  becoming,  or  effectuat- 
ing, estates  at  last.  So,  it  has  been  said,  interests  in 
personal  property  are  not  strictly  or  historically 
entitled  to  be  known  as  "  estates  "  at  all,  or  any  future 
interests  in  personal  property,  as  "  remainders ; ':  but 
nevertheless  the  courts  now  constantly  refer  to  them  as 
estates,5  and  as  "  remainders."  6 

It  is  also  to  be  noticed  that  the  statute,  in  extending 
generally  to  estates  the  capacity  of  arising  in  future, 
even  though  not  "  supported  "  by  any  "  precedent  es- 
tate," 7   says  that   "  subject  to   the  provisions   of  this 


1  Matter  of  Leask,  197  N.  Y.  193,  199-290. 

2  Cf.  §  385. 

3  Henderson  v.  Henderson,  113  N.  Y.  1,  15;  Fowler  v.  Ingersoll,  127 
N.  Y.  472,  477;  Matter  of  Wilcox,  194  N.  Y.  288;  Hone  v.  Van  Schaick, 
7  Pai.  221,  235. 

4  Lai  or,  Real  Property,  65. 

5Steinway  v.   Steinway,  163  N.  Y.  183;  Fargo  v.   Squiers,  154  N.  Y. 
250,  258;  Matter  of  Ungrich,  48  App.  Div.  594,  596,  aff'd  166  N.  Y.  618. 
6  §  393,  infra. 
1  Real  Prop.  L.,  §§  37,  50,  57,  58. 


§308.]  "REMAINDERS."  209 

article,  a  freehold  estate  as  well  as  a  chattel  real  may 
be  created  to  commence  at  a  future  day."  x  Some  of  the 
provisions  of  that  article,  to  which  this  provision  is 
thus  subjected,  are  those  operating  to  require  vesting, 
as  applied  to  what  it  terms  "  remainders,"  by  the  end 
of  the  statutory  period ;  and  this  provision  is  in  harmony 
with  the  general  statutory  scheme. 

§  308.  But  while  estates,  under  the  Revised  Statutes 
and  Real  Property  Law,  "include  every  present  right 
and  interest,  either  vested  or  contingent,  which  may  by 
possibility  vest  at  a  future  day,"  they  "  do  not  include 
the  mere  possibility  of  a  reverter  which  the  grantor 
has  after  he  has  conveyed  in  fee  on  condition  sub- 
sequent. He  has  no  present  right  or  interest  what- 
ever, and  no  more  control  over  it  than  a  son  has  in  the 
estate  of  the  father  who  is  living."  2  Such  possibilities 
of  reverter  are  unobjectionable  under  Rule  II  relating 
to  postponement  of  vesting,  because  that  rule,  even  if 
not  treated  as  strictly  confined  to  remainders,  is  cer- 
tainly confined  to  estates  and  potential  estates  which 
are  created,  and  cannot,  under  any  view  of  our  statutes, 
include  possibilities  which  are  not  created,  but  are 
merely  left  residing  in  the  grantor,  and  his  heirs,  by 
representation,  when  he  creates  a  fee  on  condition  sub- 
sequent.3 And  the  same  reasoning  applies  also  in 
reversions.  They  are  usually,  but,  it  has  been  said,  not 
necessarily,  vested;  but  in  any  event  while  "  expectant," 
they  are  not  "  future  "  estates."  4    But  all  future  estates 


'Id.,  §50. 

'Nicoll   v.  N.  Y.  &Erie   R.  R.  Co.   12  N.  Y.    121,   133;  Upington  v. 
Corrigan,  151  N.  Y.  143 ;  Fowler  v.  Coates.  201  N.  Y.  257. 

3  Upington   v.  Corrigan,  151  N.    Y.   143,  and  cases  cited.      Compare 
Gray.  Perpetuities,  2nd  Ed..  §  299. 

4  Floyd  v.  Carow,  88  N.  Y.  560. 


210  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

and  all  future  interests,  at  least  when  so  created  in  con- 
nection with  the  creation  of  an  intermediate  estate  as 
to  be  either  actual  or  potential  estates  from  the  begin- 
ning, are  for  the  present  purpose  estates  in  remainder, 
and  subject  to  all  the  rules  by  which  remainders  are 
affected.1  With  this  explanation,  it  is  in  this  in- 
clusive sense  that  the  term  "  remainder  "  will  be  used 
in  the  present  discussion. 

"  Within  the  Statutory  Period." 

§  309.  One  of  the  several  statutory  provisions  here- 
after referred  to,  which  are  embodied  in  Kule  II,  calls 
for  vesting  "within  the  period"  there  prescribed;  an- 
other requires  vesting  by  the  end  of  the  period;  while 
a  third  demands  that  the  remainder  shall  be  limited 
to  vest  in  interest  either  during  the  continuance,  or  on 
the  termination  of  the  statutory  term.  All  these 
phrases  have,  in  relation  to  the  subject  under  discus- 
sion, the  same  meaning,  namely,  that  the  requirement 
is  sufficiently  satisfied  by  a  limitation  under  which  the 
remainder  must  vest,  if  ever,  either  during,  or  at  the 
end  of,  the  appropriate  statutory  period.  This  is 
clearly  shown  in  the  illustrative  cases  cited  in  the 
following  sections. 

"Must  Vest."     "If  Ever." 

§  310.  The  statutory  provisions  embodied  in  Rule  II, 
to  the  effect  that  remainders  must  be  so  limited  as  to 
vest,  if  ever,  within  the  statutory  period,  do  not  mean 
that  only  such  as  are  certain  to.  vest  within  the  period 
will  be  allowed  to  stand.  No  contingent  remainder  is 
certain  to  vest.  What  the  statutes  mean  is  that  the 
remainder  must  be  so  limited  that  by  the  terms  of  its 


1  See  Matter  of  Wilcox,  194  N.  Y.  288. 


§310.]  "MUST  VEST.''     "IF  EVER."  211 

creation  it  must  either  vest  within  the  statutory  period, 
or  else  by  the  end  of  that  time  cease  to  be  a  possibility.1 
Where  there  is  a  vested  remainder  in  fee,  the  remainder- 
man himself  may  die  before  the  termination  of  the  pre- 
cedent estate.  But  in  that  case  his  heirs  take  through  him. 
The  existence  of  this  possibility  does  not  interfere  with 
the  vested  nature  of  the  remainder.2  The  ultimate  re- 
mainderman need  not  necessarily  be  in  being  at  the 
creation  of  the  estate.  There  is  no  prohibition  against 
the  limitation  of  such  estates  to  persons  not  then  in 
being,3  except  in  special  cases  such  as  those  relating  to 
successive  life  estates,4  and  an  estate  for  life  limited  on 
a  term  of  years.5 

And  Mr.  Lewis  6  thus  states  the  similar  principle  ap- 
plicable under  the  English  Rule  against  Perpetuities: 
"  It  is  not  sufficient,  in  order  to  test  the  validity  of  a 
limitation,  to  inquire  whether  it  be  capable  of  taking 
effect  within  the  period  prescribed  by  the  Rule;  it  must 
be  so  framed  as,  ex  necessitate,  to  take  effect,  if  at  all, 
within  that  period."  "  A  limitation  which  will  not 
necessarily  take  effect,  if  at  all,  within  the  period  pre- 
scribed by  the  Rule  against  Perpetuities,  and  which  is, 
therefore,  according  to  the  rule  just  mentioned,  bad  in 
its  inception,  will  not  be  substantiated  or  made  valid 
by  any  events  happening  subsequently  to  the  time  of 
the  creation  of  the  limitation."  "  The  time  from  which 
the  period  fixed  by  the  Rule  against  Perpetuities  is 
to  be  computed,  being  the  creation  of  the  limitations 
requiring   its   application,   that   computation   must   be 


1  See  Hawley  v.  James,  5  Pai.  317,  463-4,  466;  Manice  v.  Manice,  43 
N.  Y.  303,  374;  Brown  v.  Evans,  34  Barb.  594,  605;  Butler  v.  Butler,  3 
Barb.  Ch.  304,  811. 

8  Van  Axte  v.  Fisher,  117  K  T.  401. 

8  Manice  v.  Manice,  43  N.  Y.  303,  374,  376. 

4  Real  Prop.  L.,  §43. 

6  H.,  §  47. 

6  Perpetuities,  170-173. 


212  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

made  at  the  date  of  the  deed,  when  the  limitations  are 
created  by  an  instrument  inter  vivos,  and  at  the  death 
of  the  testator,  when  they  are  created  by  will."  "  The 
remoteness  against  which  the  Rule  for  prevention  of 
Perpetuities  is  directed,  is  remoteness  in  the  com- 
mencement, or  first  taking  effect  of  limitations,  and  not 
in  the  cesser  or  determination  of  them."  So  Rule  II, 
under  the  laws  of  New  York,  requires  that  a  remainder 
must  be  so  limited  as  to  vest,  if  ever,  during,  or  by  the 
end  of  the  period  prescribed  by  statute;  and  when  a 
remainder  is  so  limited,  all  that  the  statute  calls  for 
has  been  complied  with,  and  the  time  and  the  means 
for  possible  violation  of  the  Rule,  in  respect  to  that 
particular  limitation,  are  then  gone  forever.  The  Rule 
requires  certain  characteristics  in  the  limitation  of  a 
remainder,  in  order  that  it  may  be  a  valid  remainder; 
and  the  question  of  whether  it  has  those  characteristics 
or  not,  depends  on  what  it  is  in  its  first  appearance  as 
a  limitation.  If  it  does  not  comply  then,  it  never  can 
comply  later;  and  if  it  does  comply  then,  nothing  that 
can  happen  can  ever  make  it  obnoxious  to  the  Rule. 
The  Rule  relates  to  the  time  of  its  birth  as  an  existing 
limitation  and  to  the  question  of  whether,  viewed  as 
from  that  time,  it  must,  on  the  one  hand,  or  on  the 
other  hand  may  not,  vest,  if  ever,  within  the  period 
allowed.  This  being  the  principle,  the  fact  that  the 
instrument  also  provides,  in  the  case  of  an  estate  limited 
to  vest  in  interest  within  the  period,  that  it  shall  end 
at  a  time  which  may,  or  even  which  must,  occur  after 
the  expiration  of  that  period,  cannot  affect  the  validity 
of  the  estate  limited.  The  Rule  (as  distinguished  from 
certain  aspects  of  Rule  I  relating  to  alienability)  says 
nothing  about  the  necessity  of  ending  an  estate  within 
the  statutory  period.  In  fact  there  is  no  occasion  for 
providing  for  any  ending  whatever.  The  due  limitation 
of  a  vested  remainder  in  fee  simple  absolute,  illustrates 


§  812.]  MUST  VEST  "IN  INTEREST."  213 

the  case  of  an  estate  which,  so  far  as  the  instrument 
creating  it  is  concerned,  may  continue  for  ever.  It  is 
vested,  and  thus  satisfies  Rule  II,  and  is  alienable,  and 
satisfies  Rule  I.  If  it  is  unobjectionable  to  have  it  run 
indefinitely,  there  can  be  no  objection  to  a  due  form 
of  limitation  to  expire  at  any  time,  or  be  cut  short  by 
any  event;  the  Rules  have  no  concern  to  lengthen  out 
given  estates.  But  if  the  vested,  alienable,  valid  estate 
may  validly  expire  beyond  the  term  of  the  statutory 
period,  a  contingent  remainder  which  is  to  succeed  it  is 
not  thereby  validated.  To  be  valid,  it  must  vest  in  inter- 
est if  ever,  by  the  end  of  the  statutory  period. 

Must  Vest  "  in  Interest." 

§  311.  The  term  "  vested  in  interest,"  is  defined  in 
§  144.  A  remainder  vested  in  interest,  represents  a 
present  fixed  right  of  future  enjoyment.  It  is  thus 
distinguished,  on  the  one  hand,  from  contingent  re- 
mainders, which  do  not  represent  a  present  fixed  right, 
and  on  the  other  hand  from  estates  vested  in  posses- 
sion and  accordingly  representing  a  right  which  though 
fixed,  relates  not  to  future,  but  to  present  enjoyment. 
Rule  II  requires  that  remainders  shall  be  so  limited 
that  by  the  end  of  the  statutory  period,  if  ever,  they 
must  vest  in  interest, — that  is,  cease  to  be  contingent 
remainders.  If  a  remainder  must  thus  vest  in  interest, 
Rule  II  is  thereby  satisfied,  even  though  the  vesting  in 
possession  may  be  further  postponed.1 

§  312.  In  the  cases  under  Rule  II,  there  is  no  restric- 
tion on  the  number  of  contingencies  which  must  happen 
before  the  remainder  vests,  if  only  they  are  such  that 
it  must  vest,  if  ever,  by  the  end  of  the  statutory  period.2 

'  Murphy  v.  Whitney,  140  N.  Y.  541;  Matter  of  Murphy,  144  N.  Y. 
557;  Matter  of  Gardner,  140  N.  Y.  122,  129;  Matter  of  Wilcox,  194  N.  Y. 
288. 

8  See  the  possibilities  discussed  in  Kenyon  v.  See,  94  N.  Y.  563,  and  in 
Genet  v.  Hunt,  113  N.  Y.  158.     There  are,  however,  some  statutory  pro- 


214  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

And  it  is  here,  further,  to  be  noticed  that  although 
contingent  future  estates  may  be  divided  into  various 
groups  and  sub-groups,  mentioned  in  Chapter  III, 
which  are  of  importance  in  their  relation  to  suspension 
of  the  power  of  alienation,  yet  in  respect  to  postpone- 
ment of  vesting  these  classifications  are  of  no  con- 
sequence; the  only  point  there  of  interest  being  the 
bare  distinction  between  remainders  that  are  vested, 
and  those  that  are  contingent.  This  distinction  is, 
within  the  appropriate  scope  of  the  present  volume, 
discussed  in  Chapter  XI. 

The  only  point  here  calling  for  special  mention  is, 
that  the  compliance  of  a  given  remainder  with  the 
requirements  of  Eule  II,  does  not  necessarily  establish 
the  validity  of  the  whole  scheme  of  disposition  of  which 
the  remainder  forms  a  part.  That  remainder,  by  such 
compliance,  is,  when  viewed  merely  by  itself,  rendered 
valid,  but  other  remainders  may  nevertheless  be  void, 
and  their  invalidity  may  carry  down  with  them  the  one 
which  was  duly  vested.  Or  the  vested  remainder, 
though  vested,  and  so  valid,  may  be  vested  subject  to 
possible  defeat  by  some  contingent  remainder,  which 
latter,  to  be  valid,  must  also  comply  with  Rule  II. 

Sources  of  Rule  II. 

§  313.  As  already  pointed  out  in  Chapter  I,  the 
reasons  by  which  the  existence  of  Rule  II  is  justified, 
are  found  in  considerations  of  public  policy.  The 
statutes  which  it  embodies,  and  which  are  examined  in 
detail  in  later  sections,  co-operate,  by  requiring  the 
early  and  absolute  vesting  of  title,  to  render  properties 
of  greater  value,  not  only  to  their  owners  but  to  the 
public  at  large,  and  in  making  the  ownership  certain, 

visions  which  involve,  in  certain  cases,  a  further  necessity  of  vesting  in 
possession.  On  the  other  hand,  the  improbability  of  a  contingency  is 
immaterial,  if  it  is  not  too  remote.     Real  Prop.  L. ,  §  52. 


§  313.]  SOURCES  OF  RULE  II.  215 

to  avoid  serious  dangers  to  the  public  as  well  as  to 
many  who  are  entitled  to  look  to  the  state  for  special 
protection.  These  ends  the  statutes  attain,  like  those 
also  which  are  embodied  in  Rule  I  in  relation  to 
alienability,  by  imposing  certain  restrictions.  But  it  is 
to  be  noticed  that  the  Rules  are  aimed  not  at  restric- 
tion as  an  end,  but  at  freedom.  What  is  desired,  is  the 
continued  free  right  to  sell  and  exchange,  to  spend  as 
the  owner  pleases,  to  devise  or  bequeath  as  he  wishes; 
the  continued  incentive  to  utilize  properties  to  good 
advantage,  and  to  improve  them  in  the  interest  of  the 
common  welfare;  and  to  obliterate  objectionable  condi- 
tions which  both  inalienability,  and  the  existence  of 
uncertainties  and  contingencies,  interpose  to  create. 
But  if  there  were  no  legal  restrictions,  this  desired 
freedom  would  soon  disappear.  Absolute  freedom  to 
the  present  owner  would  too  often  be  used  by  him  to 
deprive  future  owners  either  of  all  freedom,  or  of  any 
common  convenience  and  facility  in  the  exercise  of  it, 
and  thus  if  the  law,  in  an  effort  to  secure  freedom  to  deal 
with  property,  should  omit  statutory  restrictions  such  as 
are  contained  in  Rule  II,  as  well  as  in  Rule  I,  other 
restrictions  or  obstructions  continuing  far  into  the 
future,  would  be  imposed  by  individuals.  This  result 
the  statutes  in  question,  and  other  principles  in  similar 
fields,  obviate  by  taking  the  matter  into  the  hands  of 
the  law,  and  vesting  in  absolute  owners  the  free  right 
to  dispose  of  property,  or  of  the  successive  estates  which 
may  exist  in  it,  excepting  only  (so  far  as  concerns  our 
present  discussion)  the  right  to  deprive  their  succes- 
sors in  beneficial  interest  of  the  same  freedom  and 
facility.  And  as  to  do  this  without  leeway  for  special 
cases  would  introduce  unnecessary  hardship,  and  itself 
constitute  a  danger  to  the  general  as  well  as  to  private 
interests,  it  is  further  made  possible  not  only  to  sus- 
pend the  power  to  alienate,  but,  as  a  separate  matter. 


216  POSTPONEMENT  OF  VESTING.  [CH.  VL 

to  postpone  the  absolute  vesting  of  remainders  for  a 
period,  defined  by  statute,  and  arrived  at  by  a  consider- 
ation of  the  reasonable  needs  of  the  owners  of  property, 
and  their  ordinary  and  reasonable  opportunities  for 
planning  wisely  for  the  future.1 

Rule  II,  then,  which  deals  with  the  vesting  of  re- 
mainders is  derived  not  from  one  statutory  provision 
covering  all  cases,  but  from  several  statutory  provi- 
sions which,  among  them,  cover  all  cases,  and  pre- 
scribe, or  involve,  in  each  particular  case,  the  particular 
statutory  period  to  which  it  is  subject.  These  pro- 
visions, except  in  respect  to  certain  variations  relating 
to  the  maximum  authorized  term,  apply  also  to  per- 
sonal property.  We  will  first  examine  those  relating 
to  remainders  limited  on  a  fee. 

Remainder  on  a  Fee. 

§  314.  Such  remainders  are  dealt  with  in  two  statu- 
tory provisions.  (1)  "  Subject  to  the  provisions  of  this 
article,  *  *  *  a  fee  or  other  less  estate  may  be  limited 
on  a  fee,  on  a  contingency  which,  if  it  should  occur, 
must  happen  within  the  period  prescribed  in  this  arti- 
cle." 2  (2)  "  *  *  *  a  contingent  remainder  in  fee 
may  be  created  on  a  prior  remainder  in  fee,  to  take 
effect  in  the  event  that  the  persons  to  whom  the  first 
remainder  is  limited,  die  under  the  age  of  twenty-one 
years,  or  on  any  other  contingency  by  which  the  estate 
of  such  persons  may  be  determined  before  they  attain 
full  age."  3 

§  315.  The  first  of  these  two  provisions  thus  covers 

1  Lewis,  Perpetuities,  pp.  1-6.     Chapter  I  supra,  §§  20-28 ;  31-37 ;  301  e. 

2  Real  Prop.  L.,  §  50.  Purdy  v.  Hayt,  92  N.  Y.  446,  456;  Mott  v. 
Ackerman,  92  K  Y.  539,  549;  Matter  of  Wilcox,  194  N.  Y.  288,  297-8, 
299 

3  Real  Prop.  L.,  §  42. 


§  316.]  REMAINDER  ON  A  FEE.  217 

aii  cases  of  contingent  estates  limited  on  a  fee.  whether 
they  are  themselves  estates  in  fee  or  not,  and  permits 
their  valid  creation  if  so  limited  that  they  must  vest,  if 
ever,  by  the  end  of  the  appropriate  "  statutory  period." 
The  second  statutory  provision  authorizes  a  contingent 
fee  limited  on  a  defeasible  fee,1  but  instead  of  being  a 
general  provision  like  the  first  one,  it  treats  only  of  a 
particular  case  and  consists  in  a  permission,  in  that 
case,  to  extend  still  further  than  would  otherwise  be 
permissible,  the  time  allowed  for  vesting.  It  is  con- 
fined to  the  case  where  the  preceding  fee  is  itself  a 
remainder,  limited  as  there  prescribed.  Now  a  re- 
mainder in  fee  is  not  itself  required  to  become  vested 
until  the  end  of  the  two  lives.  It  may  be  limited  to 
vest  by  the  end  of  one  life,  or  by  the  end  of  two  lives. 
In  the  latter  case  it  would  consume  the  whole  of  the 
period  ordinarily  allowed  for  the  postponement  of 
vesting  as  well  as  for  suspension  of  the  absolute  power 
of  alienation,  and  apart  from  special  authority  no  fur- 
ther contingent  remainder  could  be  left  still  outstanding. 
It  is  just  this  special  authority  that  the  provision  above 
quoted  is  intended  to  give.  It  applies  to  all  cases  of  a 
remainder  in  fee,  defeasible  during  minority,  and  it 
says,  in  effect,  that  a  further  and  contingent  remainder 
in  fee  mav  be  limited  to  vest  in  case  of  the  determina- 
tion  of  the  prior  remainder  in  fee  during  the  minority 
of  its  owner.2 

§  316.  In  Matter  of  IVilcox?  testator  left  one  third 
of  his  residuary  personal  estate  in  trust  for  the  life  <>f 
his  daughter  Frances,  and  at  her  decease,  in  trust  dur- 
ing the  respective  minorities  of  such  children  as  she 


1  Radley  v.  Kulin,  97  N.  Y.  26,  35. 

2  Radley  v.  Kuhn,  97  N.  Y.  20,  35.  See  also  the  statutory  provision 
relating  to  remainders  on  what  would  formerly  have  been  estates  in  fee 
tail,  and  their  vesting  in  possession.     Real  Prop.  L.(  §  32. 

3  194  N.  Y.  288. 


218  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

might  leave  surviving;  and  at  their  majorities  abso- 
lutely to  those  children;  and  in  case  Frances  left  no 
children  surviving  who  should  attain  the  age  of  21 
years,  then  absolutely  to  a  daughter  and  son  of  testator. 

The  provisions  for  trusts  for  the  minorities  of  the 
children  were  held  void  because  the  children  might  be 
persons  not  in  being  at  testator's  death.1  Frances  died 
leaving  no  issue  surviving.  If  there  had  been  such 
issue,  they  would,  at  the  death  of  Frances,  have  been 
entitled  to  the  principal  of  the  fund,  subject  only  to 
the  contingent  limitation  over  to  testator's  son  and 
other  daughter.  This  gift  over  was  only  to  take  effect 
in  case  Frances  left  no  issue  who  should  attain  the  age 
of  twenty-one  years.  It  was  not  also  provided  that  it 
should  take  effect  in  case  Frances  left  no  issue  at  all.2 
Hence  it  was  held  that  the  question  of  its  validity 
could  not  be  allowed  to  turn  on  the  actual  fact  that  she 
left  no  issue,  but  depended  on  whether  it  would  have 
been  a  valid  contingent  legacy  if  Frances  had  left  issue. 

Now  although  the  legacy  over,  as  given,  was  con- 
tingent, yet  it  was  so  solely  on  account  of  the  uncer- 
tainty of  the  predicated  event.  For  as,  at  the  death 
of  Frances,  if  she  left  issue,  all  the  persons  in  whom,  or 
in  some  of  whom,  the  legacy  could  finally  vest  abso- 
lutely, would  be  ascertained  persons  in  being,  their 
interests  would  be  at  all  times  alienable,  and  the  only 
contingency  there  was  anywhere  consisted  in  the  un- 
certainty as  to  which  of  them  would  ultimately  take.  In 
other  words  the  sole  ground  for  attacking  the  validity 
of  the  ultimate  disposition  to  testator's  daughter  and 
son  was,  that  while  entirely  alienable,  it  could  not 
become  vested  at  all,  unless  all  such  children  as  Frances 
might  leave,  should  die  under  majority.  And  on  this 
express  ground  the  remainder  over  was  held  void,  as 


■Id.,  p.  293. 
2  See  Chapter  X. 


§  317.]  REMAINDER  ON  A  FEE.  219 

"  a  remainder  in  fee  limited  upon  a  remainder  in  fee 
upon  a  contingency  which  might  not  happen  within 
the  period  of  two  lives  in  being."  1 

§  317.  In  O.rley  v.  Lane,2  there  are  two  instances  of 
postponed  vesting.  For  first,  there  was  a  legacy  of 
$1,250.  to  each  of  two  minors,  the  principal  to  be  paid 
to  them  at  the  end  of  25  years,  and  if  either  should 
earlier  die  without  issue,  its  share  was  to  go  to  the  sur- 
vivor. This  gift  over  was  sustained  on  the  ground 
that  "this  contingent  qualification  will  necessarily 
cease  with  one  life,  so  that  the  absolute  ownership  is 
not  thereby  suspended  for  an  unlawful  period."  These 
legacies  could  have  been  transferred  at  any  time  by  due 
action  on  behalf  of  both  infants,  but  it  was  not  on  this 
ground,  but  on  the  ground  that  the  mere  contingency 
as  to  which  would  take  must  terminate  by  the  end  of  one 
life  in  being,  that  the  provision  was  sustained.  In  the 
second  place,  in  respect  to  various  dispositions  of  real 
and  personal  property,  there  was,  in  the  eighth  clause 
of  the  will,  a  provision  that  if  any  of  the  designated 
devisees  or  legatees  should  die  without  issue  before  the 
end  of  a  term  of  twenty-five  years,  his  share  should  go 
equally  to  the  others.  In  one  of  the  shares,  there  was  a 
possibility  that  this  contingency  might  outlast  three 
lives  in  being,  and  it  was  held  void,  although  after  two 
lives  had  ended  it  could  not  have  been  inalienable,  be- 
cause all  who  could  possibly  take  it  were  living.  As  to 
each  of  the  other  shares,  the  court  preferred  the  view 
that  the  contingency  could  not  extend  beyond  two  lives, 
but  recognizing  the  possibility  of  a  construction  that 
a    sub-share,    once    devolved,    might    still    be    subject 


1  Matter  of  Wilcox,  194  N.  Y.  288,  299.  Also  Tayloe  v.  Gould,  10  Barb. 
388.  See  Thompson  v.  Thompson,  28  Barb.  432;  Brown  v.  Evans,  34 
Barb.  594;  Booth  v.  Baptist  Church,  120  N.  Y.  21.1,  '240. 

s  35  N.  Y.  340,  345.     See  Matter  of  Wilcox,  194  N.  Y.  288,  300. 


•>20  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

again  and  again  to  subsequent  devolution  to  survi- 
vors, it  held  that  in  that  event  the  later  limitations  over 
would  be  void.  But  they  could  not  be  so  on  the  ground 
of  undue  inalienability.  The  persons  who  could  ever 
acquire  rights,  as  purchasers,  by  successive  devolutions, 
were  all  in  being.  The  actual  situation  was  that  limita- 
tions over,  which  were  wholly  unobjectionable  except 
for  bare  postponement  of  absolute  vesting,  were  held 
void.1 

§  318.  We  will  now  take  up  the  statutory  provisions 
which  restrict  the  permissible  period  for  postponement 
of  the  vesting  of  remainders  limited  on  an  estate  for  a 
life. 

Remainder  on  an  Estate  for  Life. 

§  319.  Such  remainders  are  dealt  with  in  four  statu- 
tory provisions: 

§  320.  ( 1 )  "  Successive  estates  for  life  shall  not  be 
limited,  except  to  persons  in  being  at  the  creation  there- 
of; and  where  a  remainder  shall  be  limited  on  more 
than  two  successive  estates  for  life,  all  the  life  estates 
subsequent  to  those  of  the  two  persons  first  entitled 
thereto  shall  be  void,  and  on  the  death  of  those  persons, 
the  remainder  shall  take  effect,  in  the  same  manner  as 
if  no  other  life  estates  had  been  created."  2 

1  Also  Hatfield  v.  Sneden,  54  N.  Y.  280,  284. 

In  Griffin  v.  Shepard,  124  N.  Y.  70,  the  remainder  over  in  case  the  first 
taker  in  fee  should  not  leave  a  child  who  should  reach  majority,  was 
treated  as  a  valid  future  estate.  The  practical  result  reached  would  have 
been  the  same  if  it  had  been  treated  as  void.  But  its  validity  was  no 
doubt  predicated  on  the  construction  that  the  contingency  related  to  the 
state  of  facts  as  they  might  exist  at  the  death  of  the  first  taker  and  not  at 
any  later  period,  and  such  is  the  statement  of  the  court  below,  40  Hun, 
355,  358. 

2  Real  Prop.  L.,  §43;  Matter  of  Ryder,  41  App.  Div.  247;  Matter  of 
Conger,  81  App.  Div.  493,  502;  see  Woodruff  v.  Cook,  61  N.  Y.  638; 
Thieler  v.  Rayner,  115  App.  Div.  626,  aff'd  190  N.  Y.  546.  This  statute 
refers  to  successive  legal,  not  equitable,  estates.  As  to  trust  estates,  see 
§342. 


§  324.]         REMAINDER  ON  AN  ESTATE  FOR  LIFE.  221 

§  321.  (2)  "A  remainder  shall  not  be  created  on  an 
estate  for  the  life  of  any  other  person  than  the  grantee 
or  devisee  of  such  estate,  unless  such  remainder  be  in 
fee;  nor  shall  a  remainder  be  created  on  such  an  estate 
in  a  term  of  years,  unless  it  be  for  the  whole  residue 
of  such  term."  * 

§  322.  (3)  "When  a  remainder  is  created  on  any 
such  life  estate,  and  more  than  two  persons  are  named 
as  the  persons  during  whose  lives  the  life  estate  shall 
continue,  the  remainder  shall  take  effect  on  the  death 
of  the  two  persons  first  named,  as  if  no  other  lives  had 
been  introduced."2 

§323.  (4)  "Subject  to  the  provisions  of  this 
article,  *  *  *  an  estate  for  life  may  be  created  in  a 
term    of    years,    and    a    remainder    limited    thereon; 

*    *    *  Jy  3 

§  324.  In  Purdy  v.  Hayt,4  there  were  three  succes- 
sive estates  for  life,  followed  by  a  remainder  in  fee 
which  was  still  contingent  when  the  second  life  estate 
ceased,  and  it  was  held  that  though  the  third  life  estate 
must  be  cut  out,  the  ultimate  remainder  in  fee,  being 
contingent,  could  not  be  accelerated,  under  Real  Prop- 
erty Law,  §  43,  and  was  void.  It  is  true  that  there 
were  two  reasons  for  the  invalidity  of  the  ultimate  re- 
mainder: for  first,  it  was  contingent,  and  secondly,  the 
contingency  was  of  such  a  nature  as  to  occasion  suspen- 
sion of  the  power  of  alienation.  But  this  latter  reason 
was  not  essential  to  the  finding  of  invalidity.  If,  at 
the  end  of  the  second  life,  it  had  been  contingent  and 
yet  alienable,  it  would  have  been  equally  impossible  to 


1  Real  Prop.  L.,  §  44. 
«  Real  Prop.  L.,  §45. 
8  Real  Prop.  L.,  §  50. 
4  92  N.  Y.  446.     Sec  Matter  of  Wilcox,  194  N.  Y.  288,  298. 


222  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

accelerate  it,  and  it  would  still  have  been  void,  for  it  is 
only  vested  remainders  which  may  be  thus  accelerated.1 

§  325.  So  Matter  of  Conger,2  holds  that  an  ultimate 
remainder  in  personal  property,  after  three  successive 
life  estates,  would  be  void,  except  as  saved  by  the  sta- 
tutory provision  3  for  cutting  out  the  third  life  estate 
and  accelerating  the  remainder.4  If  it  had  been  con- 
tingent beyond  two  lives  it  could  not  thus  have  been 
saved.5 

§  326.  Thus  the  foregoing  statutes,  in  addition  to 
other  results  effected  by  them,  operate  as  a  matter  of 
fact  to  establish,  as  applied  to  remainders  limited  on 
an  estate  or  estates  for  a  life  or  lives,  the  proposition 
embodied  in  Rule  II,  that  no  remainder  is  valid  unless 
so  limited  that  it  must  vest,  if  ever,  by  the  end  of  the 
statutory  period. 

§  327.  If  life  estates  are  given  to  tenants  in  common 
simply  and  without  cross-remainders,  no  new  difficulty 
is  presented,  for  each  undivided  share  is  judged  solely 
on  its  own  merits,  and  the  validity  of  the  respective 
remainders  is  determined  according  to  principles  al- 
ready discussed.  But  where  the  precedent  estate  for 
life  is  given  to  tenants  in  common  with  cross-remainders 
some  special  features  are  presented.  So  far  as  Rule  I 
goes,  any  number  of  successive  life  estates,  either 
directly,  or  by  way  of  cross-remainders,  to  persons  in 
being,  and  applying  not  only  to  the  original  shares  but 
also  to  the  accrued  sub-shares  and  affecting  all  the 
property  as  long  as   any  designated  persons,  living  at 


1  Dana  v.  Murray,  122  N.  Y.  604,  618;  Purdy  v.  Hayt,  92  N.  Y.  446, 
451 ;  Graham  v.  Graham,  49  Misc.  4. 
s  81  App.  Div.  493. 

3  Real  Prop.  L.,  §  43,  applied  to  personalty  by  Pers.  Prop.  L.,  §  11. 

4  Orphan  Asylum  v.  White,  6  Dem.  201. 

5  Cases  last  cited. 


§  327.]         REMAINDER  ON  AN  ESTATE  FOR  LIFE.  223 

the  creation  of  the  estate,  survived,  would  not  effect  a 
suspension  of  the  power  of  alienation.1  But  in  respect 
to  postponement  of  vesting,  under  Rule  II,  the  statu- 
tory provisions  respecting  successive  life  estates  come 
into  play.  For  these  cross-remainders  constitute  suc- 
cessive estates  for  life,  and  consequently  there  can  be 
under  the  statute  but  two  life  estates  in  all  as  to  each 
parcel  or  share,  and  the  ultimate  remainder,  in  order 
to  be  valid  under  the  statute,  must  be  vested  at  the  end 
of  the  two  lives.  The  remainders  in  the  respective 
shares  may  be  so  limited  as  to  be  void  as  to  one  or  more 
of  the  shares  and  good  as  to  the  rest.  The  limitation 
may  be  of  such  a  character  that  it  must  remain  uncer- 
tain, until  one  or  more  of  the  tenants  have  died,  which 
remainders  could  vest  in  due  time,  and  in  such  a  case 
the  continuance  of  this  uncertainty  as  to  a  given  re- 
mainder, if  sure  to  be  terminated  within  the  statutory 
period,  does  not  affect  its  validity.  But  where  such 
uncertainty  as  to  which  share  is  to  be  affected,  and 
which  remainder  void,  will  by  the  terms  of  the  limita- 
tion outlast  the  statutory  period,  so  that  at  the  end  of 
that  period  it  will  still  be  impossible  to  ascertain 
finally  which  was  the  valid  and  which  the  invalid  re- 
mainder, here  the  entire  ultimate  remainder  for  all  the 
shares  is  void  ab  initio  under  the  statute.2 


1  Purdy  v.  Hayt,  92  N.  Y.  446,  451 ;  Beardsley  v.  Hotchkiss,  96  N.  Y. 
201,  214;  Mott  v.  Ackerman,  92  N.  Y.  539,  550;  Woodruff  v.  Cook,  47 
Barb.  304;  Woodruff  v.  Cook,  61  N.  Y.  638. 

2  Cf.  Dana  v.  Murray,  122  N.  Y.  604;  Purdy  v.  Hayt,  92  N.  Y.  446; 
Mott  v.  Ackerman,  92  N.  Y.  539,  550 ;  Matter  of  Perry,  48  Misc.  285.  See 
also  the  cases  relating  to  gifts  to  "classes."  §  366 

"  Having  restricted  to  two  the  lives  in  being  during  which  the  abso- 
lute power  of  alienation  may  be  suspended,  the  object  of  the  revisers  by 
these  further  statutes  was,  by  an  accompanying  but  distinct  rule,  to  pre- 
vent estates  of  any  kind  from  being  projected  into  the  future  farther  than 
the  period  of  two  successive  lives  of  persons  in  being  when  the  estates  are 
created."     2  Reeves,  Real  Property,  1271,  note  (a). 


224  POSTPONEMENT  OF  VESTING,  [CH.  VI. 

And  as  Mr.  Fowler  points  out,1  though  cross-remain- 
ders usually  follow  particular  estates  limited  to  ten- 
ants in  common,  "  a  limitation  may  be  of  one  lot  to  A 
and  another  to  B,  and  if  either  die  without  issue  the 
survivor  to  take.  Here  A  and  B  are  not  tenants  in 
common,  but  have  cross-remainders."  2 

§  328.  Where  the  life  estate  upon  which  a  remainder 
is  limited,  is  one  granted  or  devised  to  several  persons 
to  be  held  by  them  as  joint  tenants,  a  curious  question 
concerning  the  bearing  of  Rule  II  may  be  presented. 
For  a  life  estate,  as  well  as  a  term  of  years,  or  an  estate 
in  fee,  may  be  created  in  such  a  manner  as  to  be  held  by 
the  tenants  in  joint  tenancy,3  so  that  "  the  entire  tenancy 
upon  the  decease  of  any  of  them,  remains  to  the 
survivors,  and  at  length  to  the  last  survivor;  and  he 
shall  be  entitled  to  the  whole  estate,  whatever  it  be, 
whether  an  inheritance,  or  a  common  freehold  only,  or 
even  a  less  estate."  4  The  right  of  survivorship  applies 
only  to  the  estate  so  held,  and  not  to  anything  further. 
After  an  estate  thus  granted  for  life  to  hold  in  joint 
tenancy,  there  might  also  be  a  remainder  limited  to 


1  Real  Prop.  L.  §  38. 

2  In  Bowers  v.  Beekman,  16  Hun,  268,  there  was  a  devise  to  four  persons 
"  for  and  during  the  life  of  the  longest  lives  of  them,"  with  no  ultimate 
remainder  over.  The  devise  was  held  void  on  the  ground  that  it  sus- 
pended the  power  of  alienation  for  more  than  two  lives.  But  there  was 
nothing  to  prevent  the  four  persons  from  conveying  the  estate  devised, 
and  in  conjunction  with  all  the  heirs,  in  whom  the  reversion  vested,  an  ab- 
solute fee  in  possession  could  have  been  conveyed  at  any  time.  But  the 
decision  might  be  supported  on  the  theory  that  the  four  devisees  took  under 
a  tenancy  in  common  with  cross  remainders,  from  which  it  would  follow 
that  some  of  these  remainders  (their  identity  remaining  in  the  meantime 
uncertain)  would  not  vest  until  after  the  expiration  of  two  prior  life 
estates,  and  were  void  for  undue  postponement  of  vesting;  and  that  ac- 
cordingly the  entire  scheme  was  void. 

3  Co.  Litt.  Lib.  3,  c.  3;  Challis,  Real  Prop.,  333;  Digby,  Law  of  Real 
Prop.,  276;  Flintoff,  Introd.  to  Conveyancing,  330;  Real  Prop.  L.,  §  65. 

4  Flintoff,  330. 


§  330.]         REMAINDER  ON  AN  ESTATE  FOR  LIFE.  225 

others.1  The  nature  of  a  joint  tenancy  was,  and  is, 
such  that  each  owner's  interest  and  title  range  over  the 
whole  estate,  so  that  (except  in  certain  respects  not 
here  of  moment)  each  is  deemed  to  own  all,  and  there- 
fore, as  the  tenants  die,  the  survivors  secure  nothing 
additional  by  way  of  any  remainder  on  the  shares  of 
the  decedents,  but  merely  continue,  as  before,  to  own 
all,  until  at  last  the  final  survivor  has  title  to  all,  as 
in  this  sense  he  has  had  from  the  beginning,  and  may 
hold  it  until  the  estate  granted  ends.2  The  right 
exists,  during  the  tenancy,  to  effectuate  a  change  to  a 
tenancy  in  severalty,  but  this  is  not  here  in  point. 

§  329.  Thus  if  an  estate  is  granted  or  devised  to 
several,  to  be  held  by  them  in  joint  tenancy,  so  framed 
as  to  be  an  estate  for  life  to  last,  by  way  of  survivorship, 
while  any  of  the  tenants  live,  it  is  evident  that  the  estate 
is  one  for  the  life  of  that  one  who  shall  live  the  longest. 

§  330.  Now  the  necessity,  under  Rule  II,  for  the 
vesting,  by  the  end  of  the  "  statutory  period,"  of  re- 
mainders limited  on  estates  for  life,  has  in  previous  sec- 
tions been  based  upon  two  statutory  provisions.  One 
of  these  applies  to  the  case  of  a  remainder  limited  on  a 
succession  of  life  estates  more  than  two.  That  provision 
cannot  apply  to  the  case  now  under  discussion,  where 
the  joint  tenancy  presents  an  instance  not  of  successive 
life  estates,  but  of  one  life  estate  in  which  each  is  inter- 
ested as  long  as  he  lives,  but  which,  as  an  estate,  runs 
through  the  one  life  of  the  tenant  who  shall  live  the 
longest.  The  other  statutory  provision  already 
referred  to,  applies  to  the  case  of  an  estate  "  for  the  life 
of  any  other  person  than  the  grantee  or  devisee  of  such 
estate,"  and  requires  the  elimination  of  all  the  lives  in 


1  Co.  Litt.  supra;  Challis,  334;  Flintoff,  322,  325,  330,  331,  334. 

2  Id. 


226  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

excess  of  the  two  first  named,  and  the  vesting  in  pos- 
session, at  their  expiration,  of  the  ultimate  remainder, 
if  then  already  vested  in  interest.  That  statute  would 
apply  to  an  ordinary  life  estate  held  in  joint  tenancy, 
where  the  lives  by  which  the  term  is  measured  are  those 
of  persons  others  than  the  life  tenants.  The  question 
here  is,  whether  it  also  applies  where,  in  such  a  case,  it 
is  the  lives  of  the  tenants  themselves,  or  rather  the  life 
of  that  one  of  them  who  shall  live  the  longest,  by  which 
the  term  is  measured.  In  the  first  edition  of  this  book, 
the  opinion  was  expressed  that  that  statute  does  not 
apply.  Further  study  has  suggested  the  possibility  of 
a  different  view,  which  will  now  be  offered  merely  as  a 
suggestion. 

§  331.  In  a  certain  sense,  then,  an  estate  in  joint 
tenancy,  framed  to  run  through  the  life  of  that  one  of 
the  several  tenants  who  shall  live  the  longest,  is  un- 
doubtedly an  estate  for  the  life  of  another.  At  the 
origin  of  the  estate,  and  perhaps  until  near  its  close,  no 
one  can  tell  whose  life  it  is  that  is  to  measure  its  con- 
tinuance. Each  tenant  participates  in  an  estate  for 
life  in  the  entire  property,  but  it  cannot  be  said  to  be 
measured  by  his  own  life.  His  interest  in  the  estate 
will  end  with  his  life,  but  the  estate  itself,  if  allowed  to 
run  through  its  term  as  such,  will  only  end  with  the 
life  of  the  final  survivor.  But  the  question  is  whether, 
in  the  sense  of  the  statute,  it  is  an  estate  for  the  life 
of  a  person  other  than  the  grantee. 

§  332.  Challis  seems  to  imply  that  it  is  a  life  estate 
pur  autre  vie  at  common  law.  For  he  says :  "  Littleton's 
definition  of  joint  tenancy  is  founded  upon  the  mode  in 
which  an  estate  is  limited  to  joint  tenants.  If  lands 
are  limited  to  several  persons  by  name,  habendum  to 
them  for  life,  or  lives,  those  persons  are  joint  tenants 
during  that  life  or  those  lives.     (Litt.  sect.  277.)     They 


§  333.]        REMAINDER  ON  AN  ESTATE  FOR  LIFE.  227 

have  an  estate  pur  autre  vie  in  joint  tenancy.  Simi- 
larly, if  lands  are  limited  to  several  persons  by  name, 
habendum  to  them  and  their  heirs,  those  persons  are 
joint  tenants  in  fee  simple."  1  This  statement,  how- 
ever, is  not  free  from  ambiguity.  But  on  turning  to  the 
same  writer's  complete  classification  of  estates,2  we 
find  substantial  support  for  the  view  that  he  regards 
every  estate  for  life  in  joint  tenancy  as  an  estate  pur 
autre  vie.  For  after  stating  that  every  estate  for  life 
must  be  either  1.  An  estate  for  the  life  of  the  tenant 
himself,  or  2.  An  estate  pur  autre  vie,  he  subdivides 
this  latter  group  as  follows : 

(a)  An  estate  for  the  life  of  one  other  person; 

(b)  An  estate  for  the  joint  lives  of  several  persons, 
and 

(c)  An  estate  for  the  life  of  the  longest  liver  of 
several  persons. 

This  classification  is  open,  however,  to  the  meaning, 
that  an  estate  for  life  measured  by  the  longest  life  of 
the  grantees  themselves,  and  held  in  joint  tenancy,  is 
in  a  legal  sense  an  estate  measured  by  the  life  of  each, 
because  it  may  last  through  the  life  of  any  one,  (a  fact 
which  in  itself  would,  if  a  given  estate  did  not  belong 
under  any  other  head,  be  enough  to  render  it  an  estate 
for  life),3  and  thus  should  be  called  an  estate  for  the  life 
of  the  tenant  himself,  and  not  an  estate  pur  autre  vie. 

§  333.  One  proposition  is  plain.  The  estate  under 
consideration  is  a  recognized  form  of  estate  for  life,  and 
accordingly  must  belong  under  one  or  the  other  of  the 
only  two  classes  of  life  estates.  It  does  not  seem  to  fit 
in,  without  difficulty,  into  either  class,  but  it  is  appar- 


1  Challis,  Real  Prop.,  333. 

8  Id.,  311  and  325. 

8  Williams,  Real  Property,  Chapter  IV. 


228  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

ently  at  least  as  feasible  to  classify  it  as  a  life  estate 
pur  autre  vie,  as  to  make  it  a  life  estate  for  the  life  of 
the  grantee  himself.  But  however  this  may  be,  the  real 
question  is  whether  the  Revisers  and  the  Legislature 
may  be  deemed,  as  applied  to  the  point  under  discus- 
sion, to  have  placed  the  estate  in  question  among 
estates  for  the  life  of  a  person  other  than  the  grantee  or 
devisee.  In  considering  this,  it  would  appear  highly 
improbable  that  there  was  any  intention  to  favor,  by 
exclusion  from  the  application  of  the  statutes  requiring 
the  vesting  of  remainders,  the  one  particular  form  of 
tenancy  against  the  very  existence  of  which  the  statutes 
raise  a  presumption,1  and  against  which  equity  had 
long  showed  a  leaning  in  favor  of  tenancy  in  common.2 
It  would  appear,  on  the  contrary,  from  the  statutes 
referred  to,3  that  the  intent  was  to  cover  all  cases  of 
life  estates  granted  or  devised  to  continue,  in  whatever 
form,  during  the  lives  of  more  than  two  persons,  and 
the  language  of  §§  44-45  seems  to  be  broad  enough 
(whatever  the  proper  place  in  the  common  law  classi- 
fication) to  warrant  the  inclusion  of  all  life  estates 
held  in  joint  tenancy,  even  though  the  estate  is  to  be 
measured  by  the  life  of  the  last  surviving  tenant.  If 
that  view  is  correct,  there  would  be  not  even  one  excep- 
tion to  the  application  of  Rule  II  to  all  remainders 
whatever.4 

§  334.  We  will  now  examine  the  statutes   relating 
to  remainders  limited  on  a  term  of  years. 


1  Real  Prop  L. ,  66- 

2  Foster,  Joint  Ownership,  27. 

3  Real  Prop.  L.,  §  43-5. 

4  On  the  general  subject  of  remainders  limited  on  estates  held  in  joint 
tenancy,  compare  Sanford  v.  Goodell,  82  Hun,  369 ;  Murphy  v.  Whitney, 
140  N.  Y.  541 ;  Thieler  v.  Rayner,  115  App.  Div.  626,  aff  d  190  N.  Y.  546; 
Matter  of  Eldridge,  29  Misc.  734,  62  N.  Y.  Supp.  1026. 


§  340.]  REMAINDER  ON  TERM  OF  YEARS.  229 

Remainder  on  Term  of  Years. 

§  335.  This  subject  is  dealt  with  in  the  following 
statutory  provisions : 

§  336.  "  A  contingent  remainder  shall  not  be  created 
on  a  term  of  years,  unless  the  nature  of  the  contingency 
on  which  it  is  limited  be  such  that  the  remainder  must 
vest  in  interest,  during  the  continuance  of  not  more 
than  two  lives  in  being  at  the  creation  of  such  re- 
mainder, or  on  the  termination  thereof."  1 

§  337.  (2)  "No  estate  for  life  shall  be  limited  as  a 
remainder  on  a  term  of  years,  except  to  a  person  in 
being  at  the  creation  of  such  estate."  2 

§  338.  (3)  "All  the  provisions  contained  in  this 
article,  relative  to  future  estates,  apply  to  limitations 
of  chattels  real,  as  well  as  of  freehold  estates,  so  that  the 
absolute  ownership  [involving  both  alienability  and 
vesting,  see  Chapter  VII,]  of  a  term  of  years  shall  not 
be  suspended  for  a  longer  period  than  the  absolute 
power  of  alienation  can  be  suspended  in  respect  to  a 
fee."  3 

§  339.  (4)  "  Subject  to  the  provisions  of  this  arti- 
cle, *  *  *  a  remainder  of  a  freehold  or  chattel  real, 
either  contingent  or  vested,  may  be  created  expectant 
on  the  determination  of  a  term  of  years ;  *  *  *."  4 

§  340.  Thus  the  foregoing  statutes  establish  the 
correctness,   as    applied    to    remainders   limited    on    an 


1  Real  Prop.  L.,  §  46.  Stoiber  v.  Stoiber,  40  App.  Div.  156,  160;  Hone 
v.  Van  Scbaick,  7  Pai.  821,  235;  aff'd  20  Wend.  564;  Hawley  v.  James,  5 
Pai.  318,  463-4;  Butler  v.  Butler,  3  Barb.  Ch.  304,  311. 

'Prop.  L.,  §47. 

8  Real  Prop.  L.,  §  49.  See  also  id.  §  60,  as  to  "  disposition  of  rents  and 
profits";  §§  131,  144,  and  179  as  to  Powers,  and  Pers.  Prop.  L.,  §  11. 

«  Real  Prop.  L.,  §  50.    Wilber  v.  Wilber,  165  N.  Y.  451. 


230  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

estate  for  years,  of  the  proposition  embodied  in  Rule  II, 
that  a  remainder,  to  be  valid,  must  be  so  limited  that 
by  the  end  of  the  statutory  period,  if  ever,  it  must  vest 
in  interest.1 

§  341.  And  in  Rose  v.  Rose,2  (in  respect  not  to  the 
primary  bequest  to  a  corporation  not  yet  formed,  but  to 
the  alternative  bequest  to  the  Colonization  Society),  the 
bequest  was  given  to  an  existing  corporation  subject  to 
the  condition  precedent  that  within  five  years  a  certain 
other  proposed  corporation  should  not  be  formed  and 
raise  a  fund  of  $300,000.  The  decision  that  the  bequest 
was  invalid  was  placed  on  the  ground  of  postponement 
of  vesting  for  a  term  not  duly  measured  by  lives.  There 
was  no  express  trust ;  the  corporation  was  in  existence, 
and  specifically  designated;  it  was  certain  to  take, 
under  the  terms  of  the  instrument,  if  specified  events 
did  not  occur;  and  therefore  the  gift,  while  contingent, 
was  contingent  solely  upon  the  non-happening  of  a 
named  event.  The  only  feature  which  could  be  sug- 
gested as  operating  to  suspend  the  power  of  alienation, 
arises  from  the  nature  of  the  legatee  as  a  charitable 
corporation,  a  point  not  mentioned  by  the  court.  But 
any  inability,  if  any,  which  arises  merely  from  that 
cause,  exists  just  as  much  after  vesting  in  possession  as 
before,  and  is  not  the  kind  of  inability  which  occasions 
suspension  of  the  power  of  alienation.3  And  in  Thieler 
V.  Rayner4  it  is  expressly  held  that  if  a  remainder  is 
vested  in  interest  in  a  charitable  corporation, 
the  fact  that  it  may  not  vest  in  possession  during 
the  "  statutory  period  "  does  not  occasion  any  suspension 


1  Henderson  v.  Henderson,  46  Hun,  509,  513  and  113  N.  Y.  1 ;    Matter 
of  Bray,  118  App.  Div.  533. 

2  4  Abb.  Ct.  App.  Dec.  108,  114. 

3  Chapter  VIIT.     See  Matter  of  Wilcox,  194  N.  Y.  288,  bottom  of  p.  301. 
*  115  App.  Div.  626,  aff'd  190  N.  Y.  546. 


§  342.]  REMAINDER  ON  ESTATE  IN  TRUST.  231 

of  the  power  of  alienation.1  The  same  principle  applies 
to  a  remainder  which,  though  contingent,  is  contingent 
solely  on  account  of  the  uncertainty  of  the  event,  and 
if  it  is  still  invalid,  as  in  Rose  v.  Rose,2  it  must  be  on  ac- 
count of  the  undue  postponement  of  vesting.  If  duly 
vested,  it  would  be  valid.3  The  cases  which  have  cited 
Rose  v.  Rose,  have  done  so  on  questions  analogous  to 
that  in  the  primary  bequest  there  in  issue,  to  a  corpora- 
tion not  yet  in  existence. 

Remainder  on  Estate  in  Trust. 

§  342.  If  the  precedent  estate  is  held  by  the  trustee 
of  a  valid  express  trust,  he  must  necessarily  have  the 
legal  title,4  and  his  estate  must  be  one  of  those  enumer- 
ated in  the  list  of  possible  estates,  in  the  Real  Prop- 
erty Law,  §  30,  and  thus  to  all  practical  intents  must, 
while  the  trust  term  endures,  and  subject  to  termina- 
tion when  that  term  ends,  be  regarded  either  as  an 
estate  in  fee,5  or  an  estate  for  life,6  or  an  estate  for 
years.7 


1  Matter  of  Conger,  81  App.  Div.  493. 

2  Supra. 

3  Orphan  Asylum  v.  White,  6  Dem.  201. 
4Kernochan  v.  Marshall,  165  N.  Y.  472,  479. 

s  Knox  v.  Metropolitan  El.  Ry.  Co.,  58  Hun,  517,  520,  aff'd  128  N.  Y. 
625;  Leggett  v.  Perkins,  2  N.  Y.  297,  305;  Leggett  v.  Hunter,  19  N.  Y. 
445,  454;  Briggs  v.  Davis,  21  N.  Y.  574;  Lahey  v.  Kortright,  132  N.  Y. 
45oi  455;  Brewster  v.  Striker,  2  N.  Y.  19,  31  (see  Morse  v. 
Morse,  85  N.  Y.  53,  60);  Salisbury  v.  Slade,  160  N.  Y.  278,  290; 
Bennett  v.  Garlock,  79  N.  Y.  302,  317;  Genet  v.  Hunt,  113  N.  Y. 
150,  169;  Duvall  v.  English  E.  L.  Church,  53  N.  Y.  500,  503; 
People  ex  rel.  Short  v.  Bacon,  99  N.  Y.  275,  319;  Delafield  v. 
Shipman,  103  N.  Y.  463,  467-8. 

6  Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  146;  Matter  of  Brown,  154 
N.  Y.  313;  Matter  of  Tompkins,  154  N.  Y.  634,  644. 

1  Montignani  v.  Blade,  145  N.  Y.  Ill;  Schermerhorn  v.  Cotting,  131 
N.  Y.  48;  Keenan  v.  Keenan,  122  App.  Div.  435;  Franklin  v.  Minertz- 
hagen,  39  App.  Div.  555. 


232  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

§  343.  If  in  any  given  case  the  estate  of  the  trustee 
is  to  be  thus  regarded  as  in  fee,  or  for  years,  the  neces- 
sity that  a  remainder  thereon,  to  be  valid,  must  be  so 
limited  that  it  must,  if  ever,  vest  in  interest  by  the  end 
of  the  "  statutory  period,"  is  as  clearly  imposed  by  the 
statutes  on  that  subject,  already  considered,  as  if  the 
precedent  estate  were  absolute,  and  not  in  trust.  But 
if  the  estate  of  the  trustee  of  a  given  indivisible  trust 
is  to  be  regarded  as  an  estate  for  life,  because  measured 
by  the  lives  of  designated  individuals,  the  statutes  above 
referred  to,  in  relation  to  successive  life  estates,  or  a 
life  estate  measured  by  lives  of  third  parties,  would 
not,  by  their  own  force  alone,  operate  to  impose  the 
necessity  of  vesting  by  the  end  of  the  "  statutory 
period."  For  they  refer  to  legal,  not  equitable  estates, 
and  do  not  apply  where  the  lives  in  question  are  em- 
ployed only  as  a  measure  of  the  continuance  of  a  single 
trust  term,  or  where  they  are  merely  the  lives  of  bene- 
ficiaries during  a  trust  term.1  They  do  not  apply  to 
the  case  of  a  single  trust  created  to  continue  generally 
throughout  the  continuance  of  each  and  all  of  several 
designated  lives,  and  the  court  cannot  in  such  cases,  by 
dropping  out  a  life  or  lives  in  excess  of  two,  sustain  a 
portion  of  a  scheme  intended  by  its  creator  to  constitute 
a  single  entity.2  It  does  not  appear,  however,  whether 
the  cases  cited  proceed  on  the  theory  that  the  estate  of 
the  trustee  was  an  estate  for  life  and  yet  those  statutes 
did  not  apply,  because  not  so  intended ;  or  on  the  theory, 
which  would  seem,  as  applied  to  most  instances,  to  have 
the  better  support,  that  even  in  such  cases  the  legal 


1  Gilman  v.  Reddington,  24  N.  Y.  9,  15. 

2LaFarge  v.  Brown,  31  App.  Div.  542,  545;  Knox  v.  Jones,  47  N.  Y. 
389,  398;  Matter  of  Conger,  81  App.  Div.  493,  502;  Amory  v.  Lord, 
9  N.  Y.  403,  419;  Shipman  v.  Rollins,  98  N.  Y.  311,  314,  330;  Woodruff 
v.  Cook,  61  N.  Y.  638,  641;  Matter  of  Wilcox,  194  N.  Y.  288,  306. 
But  the  statutes  might  find  an  application  in  the  case  of  successive 
disconnected  estates,  each  in  trust  for  a  life. 


§  344.]  REMAINDER  ON  ESTATE  IN  TRUST.  233 

estate  of  the  trustee  of  a  trust  of  the  third  class,  to 
receive  and  apply  rents  and  profits,  is,  while  it  con- 
tinues, in  such  sense  a  qualified  fee  as  for  that  reason 
to  render  the  statutes  inapplicable.1  As  the  law  stands, 
therefore,  it  cannot  be  confidently  asserted  that  any  of 
the  various  statutes  already  considered  in  this  chap- 
ter always  operate,  in  all  cases,  and  by  their  own  force 
alone,  to  support  the  invariable  applicability  of  the 
principle  of  vesting  set  forth  in  Rule  II,  for  it  may  be 
that  none  of  them  covers  all  cases  of  remainders  on  ex- 
press trusts  such  as  must,  to  be  valid,  be  measured  by 
lives. 

§  344.  But  however  this  may  be,  there  is  a  group  of 
statutes  which  here  come  into  play  and  which  do  sub- 
stantiate the  invariable  applicability  of  Rule  II  to  all 
cases  of  remainders  limited  upon  an  estate  in  the 
trustees  of  such  express  trusts.  The  statutes  which 
have  that  effect  are  those  which,  together,  impose  upon 
all  trusts  which  operate  to  effect  a  suspension  of  the 
power  of  alienation,  a  maximum  "  statutory  period  ' 
within  which  they  must  be  restricted  by  the  terms  of 
their  creation.  One  invariable  and  practical,  even  if 
only  indirect,  result  of  these  statutes  is,  that  if  a  trust 
estate  is  thus  duly  restricted,  a  remainder  limited  to  take 
effect  upon  the  termination  thereof  will  necessarily  vest 
not  only  in  interest,  but  in  possession,  by  the  end  of 
the  statutory  period ;  while  if  the  trust  is  not  thus  duly 
restricted,  such  a  remainder  can  never  vest  at  all,  for 
the  precedent  trust  being  void,  the  occasion  when  the 
remainder  was  to  vest  in  possession  can  never  come  into 
existence,  and  thus  the  remainder  will   be  void  also.'2 

1  Knox  v.  Metropolitan  El.  Ry.  Co.,  58  Hun,  317,  520,  aff'd  128  N.  Y. 
625.  See  also  Matter  of  Hurlbut,  51  Misc.  263;  and  the  discussion 
of  the  estate  of  the  trustee,  and  citation  of  authorities,  in  Fowler's 
Real  Property  Law,  3rd  Ed.  pp.  324,  488,  492. 

2Schettler  v.  Smith,  41  N.  Y.  328,  347;  Knox  v.  Jones,  47  N.  Y. 
389;   Ward  v.  Ward,  105  N.  Y.  68,  75. 


234  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

"  To  render  future  estates  valid  they  must  be  so  limited 
that  the  prior  estate  will  absolutely  terminate  within 
the  period  prescribed  by  the  statute,  otherwise  they 
are  void."  *  Another  way  of  stating  the  proposition, 
from  the  point  of  view  not  of  the  validity  of  the  trust 
estate,  but  of  the  validity  of  the  remainder,  is  that  a 
remainder,  after  such  an  estate  in  trust  as  must  be  meas- 
ured by  lives,  must  itself,  to  be  valid,  be  so  limited 
that  by  the  end  of  the  statutory  period,  if  ever,  it  will 
vest  in  possession.  If  so  limited  it  will,  so  far  as  post- 
ponement of  vesting  goes,  be  valid,  and  if  not  so  limited 
it  will  be  void. 

§  345.  This  proposition,  in  its  requirement  of  vesting 
in  possession,  is  broader  than  that  embodied  in  Rule  II, 
which  only  demands  vesting  in  interest,  but  it  includes 
all  that  is  required  by  Rule  II  and  thus  fully  supports 
it  as  to  all  remainders  limited  on  such  trusts  as  must, 
to  be  valid,  be  restricted  to  the  "  statutory  period." 
The  term  "  vested  in  possession,"  as  employed  in  this 
present  connection,  merely  refers  to  absolute  vesting 
of  a  present,  as  distinguished  from  a  future,  estate,  and 
does  not  necessarily  imply  the  absence  of  bare  post- 
ponement of  the  right  in  the  vested  owner  to  actual 
occupancy. 

§  346.  It  might  be  said,  that  the  statutes  thus  relied 
on,  restricting  the  term  of  certain  express  trusts,  are 
not  sound  authorities  in  support  of  the  proposition  em- 
bodied in  Rule  II  as  to  the  vesting  of  remainders,  be- 
cause it  was  not  for  the  purpose  of  effecting  such  vest- 
ing, that  those  statutes  were  enacted.  Now  it  is  not 
certain  that  the  main  purpose  of  the  sweeping  statutory 
changes  effected  by  the  Revised  Statutes  failed  to  in- 
clude within  its  scope  the  very  proposition  covered  by 
this  subdivision.     But  assuming  that  that  result  was 


1  Fowler  v.  Ingersoll,  127  N.  Y.  472,  477. 


§  348.]  REMAINDER  ON  ESTATE  IN  TRUST.  235 

not  especially  in  the  minds  of  the  Revisers  or  the  Legis- 
lature, it  is  still  to  be  noticed  that  we  are  looking,  in 
this  discussion,  not  merely  at  the  primary  purpose  of 
the  enactment,  but  also  at  the  necessary  legal  results 
which  do  iu  fact  flow  therefrom,  one  of  which  obviously 
is  that  unless  the  scheme  of  disposition  is  so  framed 
that  by  the  end  of  the  "  statutory  period  '  the  trust 
must  cease  and  the  remainder  thereon  must,  if  ever, 
take  effect,  both  trust  and  remainder  will  be  void. 

§  347.  Nor  indeed  would  it  impair  the  force  of  this 
conclusion  to  assert  that  the  remainder  in  such  a  case 
is  void  merely  for  the  reason  that  it  is  necessarily 
carried  down  by  the  failure  of  the  precedent  estate  on 
which  it  is  limited,  and  not  at  all  for  the  direct  reason 
that  the  vesting  of  the  remainder  is  unduly  postponed1 
For  here  again  we  should  regard  the  actual  legal  result, 
and  if,  as  is  true,  a  remainder  limited  on  such  a  pre- 
cedent trust  estate,  is  void  unless  so  limited  that  it 
must  take  effect  in  possession,  if  ever,  by  the  end  of  the 
"  statutory  period,"  that  fact  constitutes  complete  sup- 
port for  Rule  II  as  applied  to  such  remainders,  even 
though  the  immediate  reason  for  their  invalidity  is 
found  in  the  failure  of  the  precedent  estate.  The 
reason  is  one  thing,  and  the  actual  result,  which  is  what 
Rule  II  undertakes  to  express,  is  another. 

§  348.  Thus  far  we  have  discussed  cases  where  the 
future  estate  is  not  intended  to  vest  at  all  except  upon 
the  assumed  condition  that  the  precedent  estate  is  valid 
and  shall  first  run  through  a  term.  But  now,  if  tin- 
future  estate  should  be  limited,  as  it  might  be,  to  take 
effect  at  an  appointed  time  not  measured  by  the  statu- 


1  As  to  which,  however,  see  Everitt  v.  Everitt,  29  N.  Y.  39,  81;  U.  S. 
Trust  Co.  v.  Hogencamp,  191  N.  Y.  281,  285;  Williams  v.  Jones,  inn 
N.  Y.  522,  537;  Kalish  v.  Kalish,  166  N.  Y.  368;  King  v.  Whaley,  59 
Barh.  71,  78. 


236  POSTPONEMENT  OF  VESTING.  L^H.  VI. 

tory  period,  and  irrespective  of  whether  the  intermedi- 
ate trust  estate  were  valid  or  void,  then  the  validity  of 
the  future  estate  would  depend  on  whether  it  should  be 
classified  as  a  "  remainder,"  in  the  sense  of  the  statutes 
under  consideration,  or  as  analogous  thereto,  and  so 
rendered  subject  to  the  principles  embodied  in  Rule  II, 
or  not  a  "  remainder  "  in  that  sense,  and  so  not  sub- 
ject to  those  principles.1 

§  349.  In  Greenland  v.  Waddell,2  there  was  a  testa- 
mentary express  trust  to  receive  and  apply  the  income 
of  personal  property  to  B,  for  life,  and  thereafter  to  pay 
the  income  to  such  children  as  B  might  leave  surviving, 
to  continue  until  the  youngest  of  them  to  arrive  at 
the  age  of  twenty-one  should  reach  that  age;  and  then 
to  pay  over  the  corpus  to  such  children  of  B,  if  any, 
should  then  be  surviving;  or  if  all  those  children  should 
die  under  age,  then  to  V  and  S.  Thus,  if  B  should  leave 
any  children  surviving,  the  contingency  would  not  be 
such  as  could  by  any  possibility  cause  a  suspension  of 
the  power  of  alienation.  At  the  death  of  B,  all  the  per- 
sons (namely,  the  children  of  B  if  any,  and  V  and  S  or 
their  successors  in  interest)  who  could  thereafter  ac- 
quire the  remainder  under  the  terms  of  the  instrument, 
would  be  ascertained  persons  in  being.  The  contin- 
gency would  consist  solely  in  the  uncertainty  as  to 
whether  those  children,  or  some  of  them,  on  the  one 
hand,  or  V  and  S  on  the  other,  would  be  the  ones  who 
would  take.     Accordingly,  they  could  all,  by  joining, 


1  There  is  another  class  of  remainder-like  interests  following 
after  trust  estates,  namely,  where  the  trust  is  to  sell,  or  to  sell, 
mortgage  or  lease,  under  Real  Prop.  L.,  §  96,  and  some  or  all,  as  the 
facts  may  be,  of  the  proceeds,  or  proceeds  after  payment  of  debts, 
are  given  or  bequeathed.  Here  there  is  a  sort  of  remainder,  §  214, 
supra,  in  personal  property,  but  it  is  limited  on  a  fee,  and  subject 
to  the  statutes  above  quoted,  and  no  difficulty  is  presented.  Briggs 
v.  Davis,  21  N.  Y.  574. 

2 116  N.  Y.  234. 


§  350.]  REMAINDER  ON  ESTATE  IN  TRUST.  237 

transfer  absolute  ownership  in  the  remainder,  but  for 
one  fact  which  rendered  those  gifts  invalid, — namely, 
that  the  uncertainty  as  to  which  ones  would  become 
entitled  at  last,  must  continue  until  all  the  children 
either  came  of  age,  or  earlier  died.  Thus  the  only  possi- 
ble ground  for  the  invalidity  of  the  remainders,  as 
found  by  the  court,  consisted  in  the  undue  postpone- 
ment of  absolute  vesting.  They  had  been  given  to  take 
effect  only  at  the  time  fixed  for  the  expiration  of  a  term 
not  duly  restricted  to  the  statutory  period.  The  prop- 
erty in  question  was  personalty,  and  the  undue  "  sus- 
pension" which,  as  the  court  found,  invalidated  the 
remainders,  was,  as  expressly  set  forth  in  the  opinion, 
a  "  suspension  of  absolute  ownership," — a  term  which 
includes  postponement  of  vesting,  and  it  was  evidently, 
and  on  the  facts  necessarily,  in  that  sense  that  the  term 
is  there  employed.  "  If  they  [the  children  of  B]  do 
not  [reach  the  age  of  twenty-one  years]  the  fact  that 
the  direction  is  that  the  fund  go  to  Mr.  Boerum  and 
Mrs.  Vandeveer  [V  and  S]  is  not  consistent  with  the 
vesting  of  absolute  ownership  in  the  children  on  the 
death  of  their  mother  [B]."  x 

§  350.  In  Knox  y.  Jones?  there  was  an  express  trust 
to  receive  and  apply  income,  which  must  continue  dur- 
ing the  lives  of  A,  B,  and  C,  and  thus  during  all  that 
time  it  would  operate  to  suspend  alienability,  and  was 
therefore  invalid.  As  to  the  remainder,  however,  it  was 
given  to  such  children  of  B,  if  any,  as  should  be  living 
at  the  end  of  the  three  lives,  and  if  no  children  of  B 
were  then  living,  then  to  Columbia  College.  Now  at 
the  death  of  B, — that  is,  the  expiration  of  one  life, — 
one  or  the  other  of  two  possible  situations  must  exist; 


1  Greenland  v.  Waddell,  supra,  p.  244.     Matter  of  Wilcox,  194  N.  Y. 
288,  304. 

2  47  N.  Y.  389. 


238  POSTPONEMENT  OF  VESTING.  [CH.  VI 

that  is,  either  no  surviving  children  of  B,  in  which  event 
Columbia  College  would,  on  the  theory  of  the  instru- 
ment, be  the  only  remainderman,  and  could  alien  the 
remainder;  or,  surviving  children  of  B,  in  which  case 
the  total  membership  of  the  group  of  possible  remain- 
dermen would  be  known,  namely,  those  children  and 
Columbia  College.  B  having  died,  there  could  be  no 
new  members  of  the  group.  Thus  Columbia  College, 
and  such  children  of  B,  owning  amongst  them  all  pos- 
sible interests  in  the  remainder,  could,  assuming  the 
remainder  to  be  otherwise  valid,  alien  the  same  abso- 
lutely. And  so  at  the  death  of  one  person  in  being  the 
remainder,  so  far  as  valid  at  all,  must  become  absolutely 
alienable,  and  could  not  be  considered  void  on  that 
ground.  But  although  thus  alienable,  the  remainder, 
in  case  of  B's  death  leaving  children  surviving,  might 
not  become  absolutely  vested,  even  in  interest,  until 
the  death  of  A,  B  and  C,  for  until  then  it  might  not  be 
known  which  of  the  several  remaindermen  would  be  the 
particular  ones  in  whom  it  would  vest  at  last.  The 
remainder,  also,  was  intended  to  vest  in  possession  only 
upon  the  natural  expiration  of  a  trust  intended  to  en- 
dure for  three  lives.  The  trust  being  void,  the  event 
upon  which  the  remainder  was  to  vest  could  never 
occur,  and  the  remainder  fell  with  the  trust. 

§  351.  In  Matter  of  Hoioland,1  there  was  a  disposi- 
tion of  property  to  be  held  in  trust  in  shares,  one  for 
each  of  testator's  grandchildren  until  it  reached  the 
age  of  twenty-one,  and  then  to  be  paid  over  to  it,  and 
in  case  a  grandchild  died  before  that  age,  then  to  the 
survivors  or  survivor  who  should  reach  majority.  The 
court  assumed  for  the  purposes  of  argument  that  the 
only  grandchildren  referred  to  were  the  three  who  were 
living  at  testator's  death,  and  still  held  the  scheme 


*75  App.  Div.  207. 


§  353.]       REMAINDER  ON  EXECUTION  OF  POWER.  239 

invalid,  apparently  on  the  ground  that  while  the  trust 
was  only  for  one  life  as  to  each  share,  the  absolute  vest- 
ing of  all  shares  in  the  remainder  might  not  be  deter- 
mined until  three  persons  had  come  of  age  or  earlier 
died.  As  the  opinion  states,  "  An  ownership  liable  to 
be  divested  by  any  contingency  arising  under  the  in- 
strument creating  the  ownership,  is  not  absolute."  And 
even  if  the  true  construction  of  the  testamentary  dis- 
position  in  that  case  is,  that  the  trust  might  continue 
as  such,-  beyond  the  statutory  period,  and  that  it  was 
for  that  reason  that  the  scheme  was  invalid,  it  is  still 
true  that  if  the  plan  of  the  trust  and  remainders  had 
been  so  arranged  that  as  to  each  share  the  trust  would 
cease  and  the  remainder  must  absolutely  vest  by  the 
end  of  the  "  statutory  period,"  the  remainders  would 
have  been  valid,  and  unless  so  arranged  the  remainders 
would  be  void,  a  proposition  which  includes  the  doctrine 
embodied  in  Rule  II. 

Remainder  on  Execution  of  Power. 

§  352.  This  subdivision  relates  to  the  case  where, 
through  the  presence  of  some  express  trust  or  contin- 
gency, there  would  be  a  suspension,  for  a  period  not 
duly  measured,  as  for  example  for  five  years,  of  the 
absolute  power  of  alienation,  but  that  the  suspension 
is  obviated  by  the  accompanying  presence  of  a  power, 
exercisable  at  any  time,  to  partition  and  convey,  or 
to  sell  and  distribute,  or  in  some  other  way  to  effectu- 
ate the  absolute  vesting  of  all  estates  and  interests.1 

§  353.  In  such  a  case,  the  remainder  or  other  like 
interest  in  the  property  or  its  proceeds,  which  is  to  take 
effect  in  possession  when  the  power  shall  be  exercised. 
may  itself  be  contingent  until  that  time,  and  the  partic- 
ular proposition  here  to  be  considered  is,  thai  the  exist- 

1  Matter  of  Wilcox,  194  N.  Y.  288;   §§  42  et  seq. 


240  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

ence  of  the  power,  sufficient  to  negative  suspension  of 
the  power  of  alienation,  does  not  have  any  similar  effect 
upon  such  postponement  of  vesting.  For  under  the 
statutes  already  discussed,  the  remainder,  to  be  valid, 
must  be  so  limited  that  it  must  vest  in  interest,  if  ever, 
by  the  end  of  the  statutory  period.  And  so,  although 
the  precedent  estate  is  freed  from  suspension  of  the 
power  of  alienation,  it  does  not  necessarily  follow  that 
a  remainder  in  the  real  property  or  the  proceeds, 
limited  to  vest  only  upon  the  actual  exercise  of  the 
power,  is  also  valid.1 

§  354.  The  explanation  of  this  fact,  that  a  power 
which  operates  to  obviate  suspension  of  the  power  of 
alienation,  does  not  necessarily  operate  to  also  render 
valid  the  contingent  remainder,  is  this:  The  Rule  relat- 
ing to  the  power  of  alienation  deals  only  with  ability  to 
effectuate  a  specified  result,  but  the  Rule  relating  to 
vesting  deals  with  the  actual  accomplishment  of  a 
different  specified  result.  Under  the  one,  the  power  to 
alien  must  not  be  unduly  suspended;  under  the  other, 
actual  vesting  must  not  be  unduly  postponed.  Under 
the  first,  the  existence  of  the  power  of  alien,  even  though 
not  exercised,  satisfies  the  demand  for  ability  to  effect 
the  vesting  of  an  absolute  fee  in  possession;  under  the 
second,  it  is  not  the  ability  to  effectuate  vesting  in  pos- 
session, but  the  actual  accomplishment  of  vesting  in 
interest,  that  is  demanded.  To  obviate  suspension  of 
the  power  of  alienation,  it  is  only  necessary  to  show 
that  there  are  persons  in  being  who  can  convey  an  ab- 
solute fee  in  possession.  If  they  can  alien,  there  is 
obviously  no  suspension  of  the  power  to  alien.  The 
difference  between  the  two  Rules  is  the  difference  be- 
tween "  may  "  in  the  sense  of  "  can,"  on  the  one  hand, 
and  "  must  "  on  the  other.     Nor  is  it  in  any  way  in- 


1  Matter  of  Wilcox,  194  N.  Y.  288. 


§  356.]       REMAINDER  ON  EXECUTION  OF  POWER.  241 

consistent  with  these  propositions  to  further  state,  as 
has  been  done  in  earlier  sections,  that  a  suspension  of 
the  power  of  alienation,  to  be  valid,  is  required  to  be 
such  that  it  not  only  may,  but  must,  cease  by  the  end 
of  the  statutory  period.  The  suspension  must  cease ; 
and  all  that  is  necessary  to  insure  its  doing  so  in  due 
time  is  to  provide  for  the  existence,  by  the  end  of  the 
statutory  period,  of  the  power  to  alien.  As  soon  as  an 
absolute  fee  in  possession  can  be  conveyed,  any  suspen- 
sion of  the  power  of  alienation  ceases  to  exist.  But 
with  regard  to  the  vesting  in  interest  of  remainders  the 
case  is  different.  For  they,  to  be  valid,  must  be  so 
limited  that  they  must  actually  vest,  if  ever,  by  the  end 
of  the  statutory  period. 

§  355.  Thus  in  the  general  class  of  cases  under  con- 
sideration in  this  subdivision,  the  existence  of  the  power 
in  question,  while  obviating  suspension  of  alienability 
as  to  the  present  trust  estate,  because  under  it  an  abso- 
lute fee  can  be  conveyed,  furnishes  no  assurance  that 
it  will  be  exercised  during  the  "  statutory  period,"  and 
so  no  assurance  that  the  time  for  the  vesting  in  inter- 
est, if  ever,  of  the  contingent  remainder,  will  arrive  by 
the  end  of  that  period.  The  power  can  be  exercised  at 
any  time,  and  thus  obviates  suspension  of  the  power  of 
alienation,  but  it  may  not  be  exercised  until  the  end  of 
the  five  years,  and  so  the  remainder  may  remain  contin- 
gent during  all  that  time,  and  is  therefore  invalid  for 
undue  postponement  of  vesting. 

§  356.  But  it  is,  of  course,  only  where  a  remainder 
may  thus  continue  contingent  for  a  term  not  duly 
measured  by  lives,  that  it  is  invalid  on  account  of  un- 
due postponement.  If  it  is  all  the  time  absolutely 
vested,  or  is  all  the  time  certain  to  become  so  by  the  end 
of  the  statutory  period,  whether  the  continuing  power 
is  then  exercised  or  not,  the  existence  of  such  a  power 
does  not  render  it  invalid,  for  in  such  a  case  there  is  no 


242  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

suspension  of  the  power  of  alienation,  and  no  undue 
postponement  of  vesting,  and  accordingly  Rule  I  and 
Rule  II  are  both  satisfied. 

§  357.  In  Henderson  v.  Henderson,1  property,  real 
and  personal,  was  vested  in  testator's  children  (of  whom 
there  were  more  than  two),  in  equal  shares,  subject  to 
a  power  (the  exercise  of  which  the  grantee  of  the  power 
was  authorized,  but  not  required,  to  postpone  for  five 
years),  "  to  partition,  divide  and  apportion  equally 
among  all  my  children  living  at  the  time  of  making 
such  partition  and  division,  and  the  child  or  children  of 
such  of  my  children  as  may  then  be  dead,  leaving  issue 
(the  latter  to  take  the  share  their  parent  would  have 
taken  if  living).2  *  *  *  And  provided,  further,  that, 
if  any  of  my  said  children  shall  die  leaving  issue,  then 
the  child  or  children  (who  shall  be  living  at  the  time 
of  such  partition)  of  such  deceased  child  of  mine  shall 
take  and  have  the  share  or  portion  which  the  parent 
would  have  taken'  if  living."  There  was  also  a  dis- 
cretionary power  of  sale  for  the  purpose  of  effecting 
the  apportionment. 

§  358.  The  difficulty  with  this  scheme  lay  solely  in 
the  parenthetical  clause  "  who  shall  be  living  at  the 
time  of  such  partition."  At  the  death  of  any  child  of 
testator,  leaving  children  surviving,  the  remainder  in 
its  share  would  vest  in  those  children,  in  equal  sub- 
shares,  but,  on  account  of  that  clause,  such  vesting 
would  not  be  absolute.  For  pending  the  actual  exercise 
of  the  power,  each  of  those  sub-shares  would  be  subject, 
in  case  of  the  death  of  the  grandchild  of  testator  in 
whom  it  was  then  vested,  to  be  divested  in  favor  of  its 
brothers  and  sisters,  and  so  on,  as  long  as  the 
exercise  of  the  power  was  delayed.     In  this  way  the 


^lS  N.  Y.  1. 

2  See  the  will  as  given  in  46  Hun,  509,  511. 


§  359.]        REMAINDER  ON  EXECUTION  OF  POWER.  243 

parenthetical  clause  in  question  provided  for  numerous 
contingent  interests  in  the  nature  of  remainders,  which 
might  not  vest  by  the  end  of  any  duly  measured 
period.1  This  clause  was  held  void  for  illegality.  But 
its  invalidity  was  not  due  to  any  undue  suspension  of 
alienability.  There  was  no  disposition,  in  any  event 
whatever,  to  any  persons  not  in  being  by  the  end  of 
one  life  in  the  case  of  each  share,  or  incapable  of 
alienating  all  interests,  and  therefore  only  the  grand- 
children of  testator,  in  whom  any  given  share  would  vest 
at  their  parent's  death,  need  be  considered.  The  fact 
that  their  sub-shares  might  be  divested  one  in  favor  of 
another,  could  not  interfere  with  alienability.  By  all 
uniting,  after  their  parent's  death,  they  could  convey  all 
such  interests  as  they  had  amongst  them,  and  there 
were  no  other  interests  elsewhere  that  could  not  also  be 
alienated.  The  only  doubt  introduced  by  this  clause 
was,  as  to  which  of  the  children  of  a  deceased  child 
would  be  the  ones  to  ultimately  acquire  his  share  ab- 
solutely. Thus  though  the  contingency  did  not  intro- 
duce any  inalienability,  it  did  involve  an  undue  post- 
ponement of  absolute  vesting,  and  it  is  on  this  ground 
that  its  invalidity  must  be  based.  Cullen,  J.,  in  the 
court  below,2  gave  that  as  the  reason  for  the  invalidity, 
and  found  the  whole  scheme  void.  The  Court  of  Ap- 
peals,3 held  the  clause  void  but  cut  it  off,  and  thus  sus- 
tained the  rest  of  the  scheme. 

§  359.  Now  this  view  of  Henderson  V.  Henderson, 
would  be  opposed  by  those  who  believe  that  there  is  no 
general  rule  against  undue  postponement  of  vesting. 
An  explanation  from  that  standpoint  has,  indeed,  been 
offered,  and  apparently  consists  in  the  proposition  thai 
it  was  not  merely  the  children  of  a  deceased  child  of 


1  Thus  contrasting  with  Bowditch  v.  Ayrault,  138  N.  Y.  222. 
*  46  Hun,  509. 
•113  N.  Y.   1,   15. 


244  POSTPONEMENT  OF  VESTING.  [CH.  VI. 

testator,  but  any  of  his  descendants,  however  remote, 
who  might,  upon  actual  partition  within  five  years,  be- 
come entitled  as  purchasers,  with  the  result  that  the 
class  entitled  to  a  given  share  might  be  constantly  open- 
ing to  let  in  new  members  not  living  at  the  death  of  the 
child  of  testator  to  whom  the  share  was  first  given,  and 
that  thus  the  power  of  alienation  might  be  suspended 
during  five  years. 

§  360.  But  that  construction  has,  on  the  facts  of 
the  case,  certain  controlling  arguments  against  it. 
"  Nothing  is  better  settled  in  the  law  of  wills  than  that 
the  term  '  children  '  does  not  include  grandchildren  or 
more  remote  descendants,  unless  there  is  something  in 
the  will  to  show  that  the  word  was  used  in  a  broader 
sense." 1  There  is  nothing  here  to  show  a  broader 
meaning,  unless  it  is  the  word  "  issue."  But  as  to  that 
word,  there  is  a  strong  tendency,  unless  restrained  by 
the  context,  to  hold  that  it  has  the  meaning  of  children. 
It  will  at  least  be  held  to  have  such  meaning  upon  a 
slight  indication  in  other  parts  of  the  will  that  such 
was  the  intention  of  the  testator.  The  use  of  it  in  con- 
nection with  the  word  children,  tends  to  define  it  in 
that  sense.2  This  principle  applies  to  such  a  provision 
for  the  issue  of  a  child  of  testator,  thus  confining  it  to 
testator's  grandchildren.3  And  one  of  the  chief  con- 
siderations, in  determining  the  meaning  of  such  terms, 
in  case  of  doubt,  is  found  in  the  bearing  of  a  given 
construction  upon  the  resulting  validity  or  invalidity 
of  the  provision,  as  for  example  in  connection  with  the 
period  of  suspension  of  the  power  of  alienation. 
"  Where  the  intent  of  the  testator  is  left  uncertain  and 


1  Pimel  v.  Betjemann,  183  N.  Y.  194,  200;  Matter  of  Keogh,  126  App. 
Div.  285,  aff'd.  193  N.  Y.  603;  Davles  v.  Davies,  129  App.  Div.  379, 
aff'd  197  N.  Y.  598. 

"Palmer  v.  Horn,  84  N.  Y.  516,  519,  520;  Chwatal  v.  Schreiner, 
148  N.  Y.  683,  687;  Clark  v.  Kittenplan,  63  Misc.  122,  128-9. 

8  Id. 


§  362.]        REMAINDER  ON  EXECUTION  OF  POWER.  245 

doubtful,  that  construction   should  be  adopted  which 
is  nearest  in  accord  with  public  policy."  x 

§  3G1.  And  this  brings  us  to  another  reason  for  be- 
lieving that  the  court,  in  Henderson  v.  Henderson,2 
construed  the  term  "  children "  as  excluding  grand- 
children of  testator's  children,  and  thus  as  not 
causing  any  undue  suspension  of  the  power  of  aliena- 
tion, and  therefore  held  the  future  interests  void  not 
on  that  ground,  but  on  the  ground  of  undue  postpone- 
ment of  vesting.  For  the  contrary  view  would  amount 
to  this  :  That  the  court,  in  that  case,  without  mentioning 
the  point,  or  explaining  why  it  departed  from  the  ordi- 
nary rules,  did  proceed  on  the  theory  that  "  children  '! 
of  a  deceased  child,  included  grandchildren  of  the  de- 
ceased child,  yet  to  be  born  even  after  the  death  of 
testator's  child,  and  then  proceed  to  hold  the  gift  void 
for  undue  suspension  of  the  power  of  alienation,  when 
by  following  the  usual  rules  of  construction  they 
would  (on  the  theory  involved  in  the  view  under  con- 
sideration that  there  is  no  such  thing  as  invalidity  due 
to  mere  postponement  of  vesting),  have  been  able  to 
sustain  the  gifts  as  valid.  But  this  is  exactly  the  line 
of  reasoning  which  is  never  followed.3  On  the  other 
hand,  if  we  assume,  as  we  must  under  the  circumstances, 
that  they  did  adopt  the  usual  rules  of  construction,  we 
find  that  there  was  no  possibility  of  the  appearance, 
as  purchasers,  after  one  life  as  to  each  share,  of  any 
persons  not  theretofore  in  being,  and  accordingly  the 
invalidity  was  necessarily  predicated  solely  upon  mere 
postponement  of  vesting. 

§  362.  This  view  is  fully  confirmed  by  the  express 


i  Id.     Wilber  v.  Wilber,  165  N.  Y.  451,  456. 

2  Supra. 

*  §  446  infra. 


246  POSTPONEMENT  OF  VESTING  [CH.  VI. 

statement  of  the  court.  For  the  opinion  states  that 
"  Under  the  statute  every  future  estate,  which  may  not 
vest  within  the  period  of  two  lives  in  being  at  the  time 
of  its  creation,  is  void."  x  And  in  Matter  of  Wilcox,2 
the  will  in  Henderson  v.  Henderson  is  thus  construed, 
and  the  court  say  that  "  in  that  case  it  is  entirely  ap- 
parent there  was  no  suspension  of  the  power  of  aliena- 
tion as  to  the  share  of  any  child,  except  during  the  life 
of  that  child,  for  on  its  death  all  its  issue  by  joining  to- 
gether could  transfer  or  convey  an  absolute  title." 
Henderson  v.  Henderson,  therefore,  illustrates  the  prin- 
ciple embodied  in  Rule  II. 

§  3G3.  These  views  are  all  confirmed  by  the  decision 
in  Robert  v.  Corning,3  where,  on  the  basis  of  one  essen- 
tial difference  in  the  facts,  but  pursuant  to  the  same 
principles  already  discussed,  the  future  interests  in 
the  proceeds  of  sale  under  the  power  were  sustained.  In 
that  case  there  was  a  precedent  estate  which  was  to  con- 
tinue until  the  exercise,  which  might  be  effected  at  any 
time  not  later  than  three  years,  of  a  power  of  sale  and 
equal  division  and  distribution,  among  testator's  chil- 
dren ;  if  any  died  before  distribution,  leaving  issue,  the 
issue  were  to  take  the  parent's  share;  if  the  deceased 
child  left  no  issue,  the  share  was  to  go  to  testator's 
other  children.  The  facts  pertinent  to  the  present  dis- 
cussion were  the  same  as  in  Henderson  v.  Henderson,4 
except  for  this :  that  the  gift  over  to  the  children 
of  a  deceased  child  was,  at  the  parent's  death,  to  vest 
not  defeasibly  as  attempted  by  the  void  clause  in  Hen- 
derson v.  Henderson,  but  absolutely.  The  ultimate 
vesting  was  to  take  place,  as  to  each  share,  by  the  end 
of  one  life,  and  so  the  remainders  were  valid. 


1  Henderson  v.  Henderson,  113  N.  Y.  1,  15. 
8 194  N.  Y.  288. 
8  89  N.  Y.  225. 
*  Supra. 


§  366.J  REMAINDER  TO  A  "  CLASS."  247 

§  364.  Another  illustration,  involving  a  precedent 
express  trust  which,  by  itself,  would  have  occasioned  a 
suspension  of  the  power  of  alienation  during  a  term 
not  duly  measured  by  lives,  and  a  power  which  because 
exercisable  at  any  time  during  that  term,  obviated  the 
suspension,  and  a  contingent  future  interest  which  was 
only  to  vest  upon  the  actual  exercise  of  the  power,  and 
would  therefore  be  held  void,  is  found  set  forth  in  the 
opinion  of  Cullen,  J.,  in  Matter  of  Wilcox.1 

Remainder  in  Default  of  Appointment. 

§  365.  Remainders  in  default  of  appointment  are  il- 
lustrated by  the  facts  in  many  cases,2  present  no  pe- 
culiarities calling  for  special  attention  here,  and  are 
mentioned  merely  as  one  of  the  general  class  of  cases 
where  the  limitation,  to  be  valid,  must  comply  with  the 
principles  embodied  in  Rule  II.  But  "the  existence  of 
an  unexecuted  power  of  appointment  does  not  prevent 
the  vesting  of  a  future  estate,  limited  in  default  of 
the  execution  of  the  power."  3 

Remainder  to  a  "  Class." 

§  366.  Gifts  of  real  or  personal  property  to  a  "  class  ,; 
may  be  so  limited  as  to  remain  contingent  until  the 

1 194  N.  Y.  288,  305.  See  also  the  discussion  of  Underwood  v. 
Curtis,  127  N.  Y.  523,  541,  infra,  §§  400-411. 

Illustrations  of  the  principles  underlying  the  distinction  between 
vested  and  contingent  remainders  or  interests,  as  affected  by  the 
presence  of  a  power  or  direction  to  convey  them,  or  to  sell  and  dis- 
tribute the  proceeds,  are  to  be  found  in  Matter  of  Brown,  154  N.  Y. 
313;  Campbell  v.  Stokes,  142  N.  Y.  23;  Moore  v.  Appleby,  108  N.  Y. 
537;  United  States  Trust  Co.  v.  Roche,  116  N.  Y.  120,  131;  Townshend 
v.  Frommer,  125  N.  Y.  446;  Duvall  v.  English  E.  L.  Church,  53  N.  Y. 
500,  503;  Salisbury  v.  Slade,  160  N.  Y.  278;  Goebel  v.  Wolf,  113  N.  Y. 
405;  Knowlton  v.  Atkins,  134  N.  Y.  313,  321;  Dana  v.  Murray,  122 
N.  Y.  604;  Real  Prop.  L.,  §  41,  quoted  §  365,  infra. 

2  Genet  v.  Hunt,  113  N.  Y.  158;  Matter  of  Haggerty,  128  App.  Div. 
479,  aff'd  194  N.  Y.  550;  Dana  v.  Murray,  122  N.  Y.  604;  Gray, 
Perpetuities,   2nd   Ed.,   §   112. 

3  Real  Prop.  L.,  §  41. 


248  POSTPONEMENT  OF  VESTING.  [CII.  VI. 

time  comes  for  the  closing  of  the  class,  and  the  conse- 
quent final  determination  of  the  membership  and  the 
share  of  each  member,  or  may  in  the  meantime  vest, 
subject  to  partial  divesting  upon  the  entrance  of  new 
members,  or  to  total  divesting  in  case  of  death  or  other 
specified  contingency.1 

§  367.  If  a  remainder  to  a  class  is  contingent  and 
the  contingency  upon  the  happening  of  which  the  vest- 
ing in  interest  is,  if  ever,  to  take  place,  may  happen 
at  any  time  during  a  period  not  duly  measured,  the  en- 
tire remainder  is  void.  If  a  remainder  is  so  limited 
that  it  must  vest  in  interest,  if  ever,  free  from  further 
defeasance,  by  the  end  of  the  statutory  period,  it  is, 
upon  that  contingency,  valid.2  If  it  must  vest  in  inter- 
est, if  ever,  by  the  end  of  the  statutory  period,  but 
might  still  be  subject  to  total  or  partial  defeat  during 
a  term  not  duly  measured,  while  the  class  still  remained 
open,  then  the  vested  interest  would  be  sustained,  and 


1  Matter  of  King,  200  N.  Y.  189;  Matter  of  Hoffman,  201  N.  T. 
247,  255;  Matter  of  Allen,  151  N.  Y.  243,  247;  Herzog  v.  Title 
Guarantee  and  Trust  Co.,  177  N.  Y.  86,  97;  Murray  v.  Miller,  178 
N.  Y.  316,  325;  Matter  of  Kimberly,  150  N.  Y.  90,  93;  Matter  of 
Russell,  168  N.  Y.  169;  Roosa  v.  Harrington,  171  N.  Y.  341,  353; 
Matter  of  Crane,  164  N.  Y.  71,  76;  Matter  of  Brown,  154  N.  Y.  313, 
326;  Matter  of  Baer,  147  N.  Y.  348;  Bisson  v.  W.  S.  R.  R.  Co.,  143 
N.  Y.  125;  Moffett  v.  Elmendorf,  152  N.  Y.  475;  Matter  of  Smith, 
131  N.  Y.  239;  Teed  v.  Morton,  60  N.  Y.  502,  506;  Delafield  v.  Ship- 
man,  103  N.  Y.  463;  Rudd  v.  Cornell,  171  N.  Y.  114,  122;  Schlereth 
v.  Schlereth,  173  N.  Y.  444,  452;  Gilliam  v.  Guaranty  Trust  Co.  186 
N.  Y.  127,  133;  Delaney  v.  McCormick,  88  N.  Y.  174,  183;  Vincent  v. 
Newhouse,  83  N.  Y.  505,  511;  Hobson  v.  Hale,  95  N.  Y.  588,  616; 
Matter  of  Embree,  9  App.  Div.  602,  aff'd  154  N.  Y.  778;  Haug  v. 
Schumacher,  166  N.  Y.  506;  Jacoby  v.  Jacoby,  188  N.  Y.  124; 
Campbell  v.  Stokes,  142  N.  Y.  23;  Stevenson  v.  Lesley,  70  N.  Y. 
512;  Byrnes  v.  Stilwell,  103  N.  Y.  453;  Monarque  v.  Monarque,  80 
N.  Y.  320;  Henderson  v.  Henderson,  113  N.  Y.  1;  Robert  v.  Corning, 
89  N.  Y.  225;  Greenland  v.  Waddell,  116  N.  Y.  234;  Tucker  v.  Bishop, 
16  N.  Y.  402;  Burrill  v.  Sheil,  2  Barb.  457;  Bascom  v.  Weed,  53  Misc. 
496;  Tayloe  v.  Gould,  10  Barb.  388;  Butler  v.  Butler,  3  Barb.  Ch.  304. 

8  Bowditch  v.  Ayrault,  138  N.  Y.  222;  and  cases  above  cited. 


§  368.]     "STATUTORY  PERIOD"  FOR  POSTPONEMENT.      249 

the  illegal  clause  or  feature  leading  to  subsequent 
divesting  be  cut  off;1  unless  such  a  course  would  not 
be  consistent  with  the  intent  of  the  creator  of  the  estate 
or  interest,  in  which  case  the  whole  scheme,  so  far  as 
inseparable,  would  be  defeated.2 

The  ' '  Statutory  Period  ' '  for  Postponement. 

§  368.  Under  the  statutes  above  referred  to,  the 
maximum  "  statutory  period  "  allowed  for  postpone- 
ment of  vesting,  is  in  all  cases  two  lives  in  being  at 
the  creation  of  the  estate,  except  under  the  special  cir- 
cumstances, relating  only  to  real  property,  and  set 
forth  in  Real  Property  Law,  §  42,  where  a  further 
minority  is  allowed  for  final  vesting. 


1  As  in  Matter  of  Ryder,  41  App.  Div.  247;  Henderson  v.  Henderson, 

113  N.  Y.  1. 

2  Chapter    X.      See    also    Lewis,    Perpetuities,    Chapters    V,    VI; 
Marsden,  Perpetuities,  Chapters  XVII,  XVIII. 


CHAPTER  VII. 

PERSONAL  PROPERTY. 

Rule  III.     Absolute  Ownership. 

The  General  Statutory  Provision. 

The  Meaning  of  Absolute  Ownership. 
Suspension  by  Contingencies. 
Suspension  by  Express  Trusts. 
Suspension  by  Powers. 
The  Statutory  Period. 

Rule  III.    Absolute  Ownership. 

§  369.  Rule  III.  The  Absolute  Ownership  of  Per- 
sonal Property  Shall  Not  be  Suspended  Beyond  the 
Statutory  Period. 

The  General  Statutory  Provision. 

§  370.  "  The  absolute  ownership  of  personal  prop- 
erty shall  not  be  suspended  by  any  limitation  or  condi- 
tion, for  a  longer  period  than  during  the  continuance 
and  until  the  termination  of  not  more  than  two  lives  in 
being  at  the  date  of  the  instrument  containing  such 
limitation  or  condition;  or,  if  such  instrument  be  a 
last  will  and  testament,  for  not  more  than  two  lives  in 
being  at  the  death  of  the  testator.  In  other  respects 
limitations  of  future  or  contingent  interests  in  personal 
property,  are  subject  to  the  rules  prescribed  in  relation 
to  future  estates  in  real  property."    Pers.  Prop.  L.  §  11. 

§  371.  The  maximum  period  allowed  for  suspension 
of  the  absolute  ownership  of  personal  property  is  thus 
"two  lives  in  being,"  without  any  exception,  (save  the 
provision  in  Real  Prop.  L.  §  49,  applying  the  real  prop- 
erty rule  to  "  limitations  of  chattels  real,"  "  so  that  the 

250 


§373.]         MEANING  OF  "ABSOLUTE  OWNERSHIP."  251 

absolute  ownership  of  a  term  of  years  shall  not  be  sus- 
pended for  a  longer  period  than  the  absolute  power  of 
alienation  can  be  suspended  in  respect  to  a  fee  ").1 

The  Meaning  of  "  Absolute  Ownership." 

§  372.  There  are  several  peculiar  features  noticeable 
in  the  statutory  provision  above  quoted,  a  study  of 
which  will  show  the  harmony  among  certain  decisions 
which  might  otherwise  appear  to  be  inconsistent. 

§  373.  One  of  the  corresponding  statutory  provisions 
in  relation  to  real  property,2  deals  with  "  suspension  of 
the  absolute  power  of  alienation,"  defines  such  suspen- 
sion as  consisting  in  the  absence  of  persons  in  being 
who  can  convey  an  absolute  fee  in  possession,  and  re- 
stricts the  maximum  authorized  term  of  suspension 
to  a  period  there  defined.  The  principles  thus  estab- 
lished are  embodied  in  Rule  I,  relating  to  Alienability.3 
If  the  fee  is  thus  alienable,  there  is  no  suspension  of  the 
absolute  power  of  alienation.  In  regard  to  real  prop- 
erty, also,  there  is  a  further  requirement  that  a  remain- 
der, in  order  to  be  valid,  must  be  so  limited  that  by  the 
end  of  the  same  "  statutory  period,"  if  ever,  it  must 
vest  in  interest,  as  set  forth  in  Rule  II,  relating  to  Vest- 
ing. The  "  statutory  period  "  thus  referred  to  in  both 
the  real  property  Rules,  is  two  lives  in  being,  with  a 
further  term  of  minority  in  certain  specified  exceptional 
cases. 


1  Manicev.  Manice,  43  N.  Y.  303,  381;  Beardsley  v.  Ilotchkiss,  96  N.  Y. 
201,  216;  Greenland  v.  Waddell,  116  N.  Y.  234,  245;  Read  v.  Williams, 
125  N.  Y.  560,  567;  Matter  of  Wilcox,  194  N.  Y.  288,  306;  Banks  v. 
Phelan,  4  Barb.  80;  Strang  v.  Strang,  4  Redf.  376;  Estate  of  Thomas, 
Tucker,  367;  Thompson  v.  Thompson,  28  Barb.  432;  Tayloe  v.  Gould,  10 
Barb.  388;  Richards  v.  Moore,  5  Redf.  278;  Jansen  v.  Cairns,  3  Barb.  Ch. 
350,  356 ;  Thompson  v.  Clendening,  1  Sandf .  Ch.  387. 

2  Real  Prop.  L.,  §42. 

3  Supra  §  1. 


252  PERSONAL  PROPERTY.  [CH.  VII. 

§  374.  But  when,  on  the  other  hand,  we  turn  to  per- 
sonal property,  we  find  that  these  two  subjects  of  alien- 
ability and  vesting  are  both  dealt  with  not,  as  in  the 
case  of  real  property,  in  separate  statutory  provisions, 
but  in  the  one  statutory  provision  quoted  in  the  preced- 
ing section. 

§  375.  This  statutory  provision  consists  of  two  sen- 
tences. The  first  sentence  employs,  to  designate  and 
comprise  the  two  subjects  of  alienability  and  vesting 
thus  to  be  dealt  with,  the  single  term  "  absolute  owner- 
ship," and  prohibits  the  suspension  of  such  absolute 
ownership  for  a  longer  period  than  two  lives  in  being, 
with  no  provision,  as  in  the  case  of  real  property,  for  a 
further  minority.  The  second  sentence  renders  appli- 
cable to  future  or  contingent  interests  in  personal  prop- 
erty, in  respects  other  than  that  dealt  with  in  the  first 
sentence,  the  rules  relating  to  future  estates  in  real 
property.  It  is  the  first  sentence  only  which  specific- 
ally refers,  in  terms,  to  suspension  of  absolute  owner- 
ship, and  its  prohibition  of  suspension  beyond  the  statu- 
tory period  of  two  lives  applies  to  such  suspension 
effected  by  "  any  limitation  or  condition  "  whatever.  It 
also  is  confined  to  the  subject  of  suspension  of  absolute 
ownership,  and  its  limitation  of  the  permitted  term  is 
absolute  and  complete. 

§  376.  But  here  an  odd  circumstance  tends  to  ob- 
scure the  true  relations  of  the  first  sentence  of  the  stat- 
ute with  its  second  sentence.  For  it  will  be  noticed  that 
in  the  case  of  real  property  the  word  "  suspended  "  is 
employed  with  reference  to  alienability  only,  because 
merely  forming  a  part  of  the  phrase  "  the  absolute  power 
of  alienation  shall  not  be  suspended  *  *  *  ."  By 
themselves  alone  the  words  "  suspended  "  and  "  suspen- 
sion "  would  not  be  thus  confined  to  the  subject  of  alien- 
ability.   It  is  only  when  we  look  to  see  what  suspension 


§377.]        MEANING  OF  "  ABSOLUTE  OWNERSHIP."  253 

is  referred  to,  that  we  thus  find,  in  the  case  of  real  prop- 
erty, that  the  statute  in  question  is  dealing  with  suspen- 
sion of  the  power  to  alienate.  Now  the  same  word  "  sus- 
pended "  is  also  used  in  the  statute  relating  to  personal 
property.  That  statute  also,  like  the  one  dealing  with 
real  property,  prohibits  "  suspension ''  beyond  a  desig- 
nated term.  But  in  looking,  in  that  connection,  to  see 
what  suspension  is  referred  to,  we  find  that  it  is  no 
longer  restricted  to  suspension  of  an  absolute  power  to 
alienate,  but  that  what  is  prohibited,  beyond  the  desig- 
nated term,  is  a  suspension  of  "  absolute  ownership," 
which  obviously  includes  more  than  mere  alienability. 

§  377.  Although  at  first  sight,  therefore,  and  on  ac- 
count of  the  presence  of  the  word  "  suspended,"  it  might 
seem  that  the  first  sentence  dealt  with  alienability  only, 
and  not  at  all  with  postponement  of  vesting,  and  thus 
corresponded,  as  to  its  subject,  to  Rule  I  in  relation  to 
real  property,  while  the  second  sentence  dealt  with  post- 
ponement of  vesting,  and  not  with  alienability,  and  thus 
corresponded,  as  to  its  subject,  to  Rule  II  in  relation  to 
real  property,  yet  further  examination  shows  that  the 
two  sentences  cannot  thus  be  allotted  respectively  to 
these  two  topics.     For  example,  it  is  only  in  the  first 
sentence  that  there  is  any  reference  to  the  fixed  maxi- 
mum term  of  two  lives  in  being  as  distinguished  from 
the  real  property  term  of  two  lives  and  in  certain  cases 
a  further  minority;  so  that  if  the  first  sentence  dealt 
only  with  alienability,  and  the  only  provision  in  rela- 
tion to  postponement  of  vesting  were  to  be  found  in  the 
second  sentence,  the  authorized  term  of  postponement 
of  vesting  would,  as  in  the  case  of  real  property,  be 
two  lives  in  being  and  in  certain  cases  a  further  minor- 
ity.     Rut   it  is  settled  that   the   maximum   authorized 
term  for  the  postponement  of  vesting  of  future  estates, 
or  interests,   in   personal   property,   is    two   lives   only. 
The  sole  possible  basis  for  this  limitation  to  two  lives 


254  PERSONAL  PROPERTY.  [CH.  VII. 

only,  is  to  be  found  in  the  first  sentence  of  the  statute, 
and  in  that  sentence  it  is  the  term  of  suspension  of 
"  absolute  ownership  "  which  is  thus  limited.  The  con- 
clusion is,  then,  inevitable,  that  the  term  "  absolute 
ownership  "  is  not  confined  to  alienability  only,  but 
also  includes  vesting;  and  that  "absolute  ownership" 
does  not  exist  unless  all  interests  in  the  property  are 
both  alienable  and  vested.1 

§  378.  In  this  view  of  the  statutory  provision  under 
consideration,  its  second  sentence  is  to  be  understood 
as  excluding  from  its  terms  any  provision  in  regard  to 
the  authorized  term  of  inalienability  or  the  authorized 
term  of  postponement  of  vesting,  and  to  be  confined  to 
providing  that  "  in  other  respects  [than  that  relating 
to  the  statutory  period  for  suspension  of  absolute  own- 
ership, just  provided  for  in  the  first  sentence,  2]  limita- 
tions of  future  or  contingent  interests  in  personal 
property  are  subject  to  the  rules  prescribed  in  relation 
to  future  estates  in  real  property."  These  "  other  re- 
spects," for  example,  include  the  only  provisions  as  to 
ivhat  shall  happen  if  an  attempt  is  made  to  suspend 
the  absolute  ownership  for  more  than  two  lives  in  being. 
The  first  sentence  merely  says  that  it  shall  not  be 
unduly  suspended,  but  it  is  the  provisions  of  the  Keal 
Property  Law,  incorporated  in  the  second  sentence  by 
the  reference  to  "  other  respects,"  that  prescribe  the 
results  that  follow  an  attempted  undue  suspension  of 
alienability  or  postponement  of  vesting.  So,  generally, 
the  "  other  respects  "  cover  all  matters  not  relating  to 
the  permitted  length  of  term.3 


'Matter  of  Wilcox,  194  N.  Y.  288;  Steinway  v.  Steinway,  163  N.  Y. 
183;  Hone  v.  Van  Schaick,  7  Pai.  221;  Matter  of  Howland,  75  App.  Div. 
207;  Greenland  v.  Waddell,  116  N.  Y.  234,  235.     See  also  Chapter  VI. 

2  Stringer  v.  Young,  191  N.  Y.  157,  162;  Gilman  v.  Reddington,  24 
N.  Y.  9,  13. 

3  Matter  of  Wilcox,  194  N.  Y.  288. 


§  381.]        MEANING  OF  "  ABSOLUTE  OWNERSHIP."  255 

§  379.  Thus  understood,  the  meaning  of  the  entire 
statutory  provision  is  the  same  as  if  it  were  recast  as  fol- 
lows :  Limitations  of  future  or  contingent  interests  in 
personal  property  are  subject  to  the  rules  prescribed 
in  relation  to  future  estates  in  real  property,  including, 
among  other  things,  the  rule  in  relation  to  suspension 
of  the  absolute  power  of  alienation  and  the  rule  in  re- 
lation to  postponement  of  vesting,  both  of  which  topics 
are  comprised,  in  the  case  of  personal  property,  in  the 
term  "  suspension  of  absolute  ownership ;  "  except,  that 
such  absolute  ownership  of  personal  property  shall 
not  be  suspended  by  any  limitation  or  condition,  for  a 
longer  period  than  during  the  continuance  and  until 
the  termination  of  not  more  than  two  lives  in  being, 
etc.  It  is  only  upon  this  theory,  that  the  different  parts 
of  the  statutory  provision  above  quoted  can  be  ren- 
dered consistent  and  rational  in  their  relation  to  one 
another.  The  statute  therefore  embodies  in  one  sec- 
tion, the  two  rules  against  undue  suspension  of  alien- 
ability and  against  undue  postponement  of  vesting 
which,  in  respect  to  real  property,  are  found  embodied 
(with  one  exception  as  to  a  possible  added  term  in  cer- 
tain cases),  in  two  different  sets  of  statutory  provi- 
sions. This  view  is  abundantly  and  firmly  established 
by  the  decisions.1 

§  380.  Upon  the  subject  under  discussion,  however, 
it  is  possible  to  find  remarks  in  the  reported  opinions 
of  the  courts,  which  are  not,  as  a  matter  of  phraseology, 
entirely  in  harmony.  In  most  instances  the  apparent 
lack  of  harmony  disappears  when  the  scope  of  the  re- 
marks is  ascertained  from  the  state  of  facts  in  connec- 
tion with  which  they  were  made.  They  may  be  grouped 
as  follows: 

§  381.    (1)    One  class  of  statements  deals  with  "  a b- 

1  Matter  of  Wilcox,  194  N.  Y.  288,  and  cases  above  cited. 


256  PERSONAL  PROPERTY.  [CH.  VII. 

solute  ownership r  as  consisting  solely  in  absolute 
alienability.  Thus  it  has  been  said,  that  "  it  is  perfectly 
well  settled  that  there  can  be  no  suspension  of  abso- 
lute ownership  when  there  are  persons  in  being  who 
can  convey  an  absolute  title."  1  Indeed,  similar  de- 
tached statements  could  be  cited  with  reference  to  real 
property,  as  if  the  rule  against  undue  suspension  of 
the  power  of  alienation  were  the  only  one  to  be  reck- 
oned with.2  With  one  exception,  the  cases  cited  did 
not  involve  any  question  of  the  effect  of  postponement 
of  vesting,  upon  absolute  ownership,  and  their  state- 
ments clearly  relate  only  to  the  subject  of  alienability.3 
The  point  seems  to  have  been  squarely  presented,  how- 
ever, in  Sawyer  v.  Cubby,4  where  the  court  say  that 
"  The  statutory  test  of  what  constitutes  a  suspension 
*  *  *  of  absolute  ownership  as  to  personal  prop- 
erty, is  that  it  occurs  only  when  there  are  no  persons 
in  being  by  whom  an  absolute  estate  in  possession  can 
be  conveyed."  The  later  decisions  unfortunately  throw 
no  light  on  the  exact  bearing  of  this  statement,  for  dur- 
ing the  fifteen  years  since  Sawyer  v.  Cubby,  was  decided, 
it  has  never  been  mentioned  by  the  Court  of  Appeals, 
and  never,  on  the  point  now  under  consideration,  by 
the  Appellate  Division.5  It  is  not  to  be  assumed 
that   the  case  is   inconsistent,    for   example,   with   the 


1  Wells  v.  Squires,  117  App.  Div.  502,  aff'd  191  N.  Y.  529;  Williams  v. 
Montgomery,  148  N.  Y.  519,  525-6;  Sawyer  v.  Cubby,  146  N.  Y.  192,  198; 
Emmons  v.  Cairns,  3  Barb.  243,  244-5;  Brown  v.  The  Mutual  Trust  Co., 
22  Weekly  Dig.  395. 

2  Mills  v.  Mills,  50  App.  Div.  221 ;   Murphy  v.  Whitney,  140  N.  Y.  541. 

3  Wilber  v.  Wilber,  165  N.  Y.  451;  Matter  of  Bray,  118  App.  Div.  533. 
4 146  N.  Y.  192,  198. 

5  None  of  the  five  opinions  which  have  cited  it  had  this  question  to  deal 
with.  Matter  of  Lally,  136  App.  Div.  781,  785;  198  N.  Y.  608;  Burke  v. 
O'Brien,  115  App.  Div.  574,  576;  Matter  of  Roberts,  112  App.  Div.  732, 
735;  Haug  v.  Schumacher,  50  App.  Div.  562,  568;  166  N.  Y.  506;  Wilber 
v.  Wilber,  45  App.  Div.  158,  161;  165  N.  Y.  451. 


§383.]        MEANING  OF  "  ABSOLUTE  OWNERSHIP."  257 

views  expressed  in  Matter  of  Wilcox.1    But  if  it  is,  it 
would  have  to  be  looked  on  as  overruled. 

§  382.  (2)  A  second  group  of  statements  seems  to 
suggest  that  while  absolute  alienability  is  not  enough, 
in  itself,  to  insure  absolute  ownership,  yet  it  will  not 
be  sufficient  to  add  merely  the  further  factor  of  vesting, 
but  that  still  a  third  factor  is  essential,  namely,  that 
the  property  must  be  not  only  alienable  but  alienable 
by  the  particular  person  who  is  entitled  to  the  enjoy- 
ment of  it.  Some  sentences  of  the  opinion  in  Under- 
wood v.  Curtis?  convey  this  idea.  The  case  is  fully 
considered  elsewhere,3  and  it  is  believed  that  it  does 
not  in  reality  support  any  such  doctrine.  It  may  here 
be  noticed  that  the  two  theories  of  "  absolute  owner- 
ship "  referred  to  in  the  present  and  in  the  preceding 
paragraph,  are  wholly  inconsistent,  and  cannot  stand 
together. 


'»v 


§  383.  (3)  The  third  group  comprises  cases  that 
treat  "  absolute  ownership  v  as  involving  two  factors 
onlv,  namely  alienability  and  vesting.  In  order  that 
the  absolute  ownership  of  property  should  not  be  sus- 
pended, all  interests  in  it  must  be  both  alienable,  and 
vested.  This  is  the  principle  clearly  established  by  the 
statutes  and  decisions.4  If  any  interest  is  not  alienable. 
or  is  contingent,  the  ownership  is  not  absolute.  If  all 
interests  are  both  alienable,  and  vested,  the  ownership 
is  absolute.  Beyond  this,  there  are  no  further  require- 
ments. Xor  does  the  fact  that  some  interest  is  con- 
tingent or  inalienable,  and  that  the  resulting  suspen- 
sion of  absolute  ownership  is  not  duly  restricted  within 


1  194  N.  Y.  288. 

*  127  N.  Y.  523. 

3  §  400  et  seq. 

«  Matter  of  Wilcox,  194  N.  Y.  288. 


258  PERSONAL  PROPERTY.  [CH.  VII. 

two  lives  in  being,  necessarily  vitiate  the  entire  scheme 
of  disposition  of  which  it  forms  a  part.  This  latter 
point  is  discussed  in  Chapter  X. 

§  384.  Although,  by  its  terms,  the  second  sentence 
of  the  statutory  provision  above  quoted  applies  to  limi- 
tations of  future  or  contingent  interests,  yet  the  courts 
do  not  confine  themselves  to  such  limitations  in  apply- 
ing to  personal  property  the  rules  relating  to  real  prop- 
erty. For  in  many  cases  they  have  held  applicable 
to  present  interests  in  personal  property,  by  analogy, 
the  rules  relating  to  corresponding  interests  in  real 
property.  "  Where  there  is  no  reason  for  a  distinction 
in  the  nature  of  the  property  there  is  certainly  great 
propriety  in  assimilating  the  rules  governing  disposi- 
tions of  real  and  personal  property."  1  The  rules  gov- 
erning estates  or  interests  in  lands  are,  so  far  as  prac- 
ticable, applied  to  estates  or  interests  of  a  like  charac- 
ter in  personal  property ; 2  and  the  term  "  estate  "  is 
frequently  employed  in  reference  to  interests  in  personal 
property.3 

§  385.  "  Even  if  the  provisions  of  the  statute  were  not 
sufficiently  comprehensive  absolutely  to  require,  as  a 
peremptory  injunction  of  statute  law,  their  application 
in  all  their  length  and  breadth,  and  in  the  same  degree, 
to  both  classes  of  property,  the  argument  to  be  derived 
from  the  general  similarity  of  the  legislative  enact- 
ments, in  regard  to  both  classes  of  property;  from  the 
similar,  if  not  equal  mischiefs  to  be  remedied,  and  from 
the  general  policy  of  the  law,  would  authorize  a  court 
of  equity,  in  the  exercise  of  its  acknowledged  powers,  to 
apply  the  same  rule  of  construction  to  both."  4     And 


1  Cook  v.  Lowry,  95  N.  Y.  103,  111. 

2  Fargo  v.  Squiers,  154  N.  Y.  250,  258. 

3  Supra,  §  216. 

4  Graff  v.  Bonnett,  31  N.  Y.  9,  13;  Mills  v.  Husson,  140  N.  Y.  99,  105; 
Cutting  v.   Cutting,  86  K  Y.  522,544;  Cook  v.  Lowry,  95  N.   Y.   103, 


§385.]        MEANING  OF  "ABSOLUTE  OWNERSHIP."  259 

statutes  relating  to  personal  property  may  often  like- 
wise be  applied  by  analogy  to  real  property.1 

Illustrations  of  the  application  to  dispositions  of 
personal  property,  of  statutory  provisions  relating 
specifically  to  real  property,  without  other  authoriza- 
tion than  that  furnished  either  by  §  11  of  the  Personal 
Property  Law,  or  by  the  principle  of  analogy,  are  to  be 
found,  for  example,  in  the  following  cases:  the  statu- 
tory preference  for  tenancy  in  common,  over  joint 
tenancy ; 2  the  test  of  distinction  between  vested  and 
contingent  future  estates;3  the  provisions  making  up 
the  rule  that  a  remainder,  to  be  valid,  must  be  so 
limited  that  it  will  be  certain  to  vest,  if  ever,  by  the 
end  of  the  appropriate  statutory  period,4  as  for  instance 
the  statute  providing  that  not  more  than  two  successive 
estates  for  life  can  be  created,  and  that  any  further 
attempted  life  estates  will  be  eliminated,  and  that  the 
ultimate  remainder,  if  vested,  will  be  accelerated ; 5  the 
provision  that  expectant  estates,  irrespective  of  whether 
they  are  vested  or  contingent,  are  alienable,  devisable 
and  descendible,  for  what  they  may,  in  the  event,  prove 


110-111;  Cochrane  v.  Schell,  140  N.  Y.  516,  534;  Genet  v.  Hunt,  113  N.Y. 
158,  168;  Matter  of  Crossman,  113  N.  Y.  503,  510;  Steinway  v.  Steinway, 
163  N.  Y.  183,  195,  196;  Bliven  v.  Seymour,  88  N.  Y.  469,  478;  Matter  of 
Cooksey,  182  N.  Y.  92,  97;  Hutton  v.  Benkard,  92  N.  Y.  295,  305-6; 
Fargo  v.  Squiers,  154  N.  Y.  250,  258;  Matter  of  Brown,  154  N.  Y.  313, 
324;  Matter  of  Moehring,  154  N.  Y.  423,  427;  Stringer  v.  Young,  191 
N.  Y.  157,  164;  N.  Y.  Life  Ins.  &  T.  Co.  v.  Livingston,  133  N.  Y.  125, 
127-8;  Greenland  v.  Waddell,  116  N.  Y.  234,  242-3;  Williams  v.  Thorn, 
70  N.  Y.  270;  Matter  of  Conger,  81  App.  Div.  493;  Smith  v.  Edwards,  88 
N.  Y.  92,  103;  §272,  supra. 

1  Cochrane  v.  Schell,  140  N.  Y.  516,  534. 

2  Matter  of  Kimberly,  150  N.  Y.  90,  93,  and  other  cases  cited  in 
§  105  et  seq. 

*  Steinway  v.  Steinway,  163  N.  Y.  183,  195. 

*  Matter  of  Wilcox,  194  N.  Y.  288  and  other  cases  cited  in  Chapter 

VI. 

8  Matter  of  Conger,  81  App.  Div.  493. 


260  PERSONAL  PROPERTY.  [CH.  VII. 

to  be  worth ; *  the  test  of  what  constitutes  alienability ; 2 
the  principle  that  acts  in  contravention  of  the  terms  of 
a  trust  are  forbidden  and,  as  to  those  charged  with 
notice,  are  void,3  the  provision,  even  apart  from  a 
special  statute,  that  the  interests  of  the  beneficiaries 
of  certain  trusts  are  not  transferable ; 4  the  statutes 
governing  the  rights  of  creditors  of  trust  beneficiaries ;  5 
the  provisions  giving  to  those  entitled  to  the  "  next 
eventual  estate,"  any  "  rents  undisposed  of "  during 
certain  periods  of  suspension  of  alienability ; 6  the  prin- 
ciple that  a  trust  to  apply,  or  pay  over,  the  rents,  im- 
plies an  authority  to  collect  and  receive  them;7  that 
the  bare  legal  title  to  property  covered  by  an  express 
trust  does  not  vest  in  the  beneficiary ; 8  that  a  trust 
ceases  when  its  purpose  ends;9  and  the  general  aboli- 
tion of  powers  as  formerly  existing,  and  the  adoption 
of  a  new  code  covering  the  creation  of  powers  and 
their  construction  and  execution.10  The  law  in  this 
latter  field,  in  reference  to  real  property,  has  been  ap- 
plied, for  example,  in  the  case  of  personal  property,  to 

1  Ham  v.  Van  Orden,  84  N.  Y.  257,  269-270. 

2  §§  373-386. 

3McPherson  v.  Rollins,  107  N.  Y.  316;  Genet  v.  Hunt,  113  N.  Y. 
158,  168. 

4  Stringer  v.  Young,  191  N.  Y.  157,  164;  Graff  v.  Bonnett,  31  N.  Y. 
9;  Cochrane  v.  Schell,  140  N.  Y.  516,  534;  Mills  v.  Husson,  140  N.  Y. 
99,  105;  Roosevelt  v.  Roosevelt,  6  Hun,  31,  et  seq.,  aff'd  64  N.  Y. 
651. 

6  Williams  v.  Thorn,  70  N.  Y.  270;  Graff  v.  Bonnett,  31  N.  Y.  9; 
Cutting  v.  Cutting,  86  N.  Y.  522,  544;  Mills  v.  Husson,  140  N.  Y. 
99,  105,  and  other  cases  cited  in  §  62,  note  4. 

6  Cook  v.  Lowry,  95  N.  Y.  103;  Gilman  v.  Reddington,  24  N.  Y. 
9,  19;  Mills  v.  Husson,  140  N.  Y.  99,  104,  and  other  cases  cited  in 
§§  244,  245. 

7  Knox  v.  Jones,  47  N.  Y.  389,  396,  compare  Onondaga  T.  &  D.  Co. 
v.  Price,  87  N.  Y.  542,  547. 

8  Knox  v.  Jones,  47  N.  Y.  389,  396. 
"Mills  v.  Husson,  140  N.  Y.  99. 

10Hutton  v.  Benkard,  92  N.  Y.  295,  304;  Cook  v.  Lowry,  95  N.  Y. 
103,  111. 


§386.]        MEANING  OF  "ABSOLUTE  OWNERSHIP.  261 

the  definition  and  classification  of  powers;  !  the  formula 
or  method  of  computing  the  maximum  period  of  suspen- 
sion effected  by  an  instrument  in  execution  of  a  power; 
the  restrictions  concerning  the  estate  or  interest  to  be 
given  or  limited;2  the  effect  upon  vesting,  of  tin- 
existence  of  a  power  of  sale,3  the  operation  of  an  abso- 
lute power  of  disposition,  in  certain  cases,  in  conferring 
an  absolute  title  upon  the  donee  of  the  power;4  and 
the  provision  that  unless  a  contrary  intent  appear,  a 
will  purporting  to  convey  all  the  property  of  a  testator, 
passes  all  property  which,  by  a  power  granted  to  him, 
he  is  authorized  to  devise  or  bequeath.5  On  the  other 
hand,  there  are  statutes,  such  as  those  abolishing  all 
trusts  with  specified  exceptions;  and  allowing,  in  cer- 
tain cases  a  further  term  of  suspension  or  postponement 
of  vesting,  after  two  lives,  which  are  inapplicable  to  the 
case  of  personal  property. 

§  386.  Such  being  the  law,  it  remains  to  consider 
the  particular  circumstances  under  which  absolute  own- 
ership may  be  suspended.  And  for  this  purpose,  all 
classes  of  suspension,  as  in  the  case  of  real  property, 
may  be  grouped  under  the  headings  of  contingencies, 
express  trusts,  and  powers.6  This  statement  and  the 
cases  cited,  are  more  fully  considered  in  the  following 
paragraphs. 

1  Matter  of  Cooksey,  182  N.  Y.  92,  97. 

'Fargo  v.  Squiers,  154  N.  Y.  250,  259. 

3  Matter  of  Brown,  154  N.  Y.  313,  324. 

*  Matter  of  Moehring,  154  N.  Y.  423,  427. 

BHutton  v.  Benkard,  92  N.  Y.  295,  304;  Mott  v.  Ackerman,  92  N.  Y. 
539,  549;  N.  Y.  L.  Ins.  &  T.  Co.  v.  Livingston,  133  N.  Y.  12.".,  Pers. 
Prop.  L.  §  18.  References  to  illustrations  of  the  application  of 
statutes  or  principles  relating  to  real  property,  to  dispositions  of 
personal  property,  are  collected  in  the  index,  under  the  heading 
Personal  Property. 

"Haynesv.  Sherman,  117  N.  Y.  433;  Brewer  v.  Brewer,  It  Hun,  147; 
aff'd  as  Bremer  v.  Penniman,  72  N.  Y.  603;  Everitt  v.  Everitt,  29  N.  Y. 
39,  71  etseq.;  82etsc/.;  Steinway  v.  Steinway,  163  N.  Y.  183;  Matter  of 
Wilcox,  194  N.  Y.  288. 


262  PERSONAL  PROPERTY.  [CH.  VII. 

Suspension  by  Contingencies. 

§  387.  As  distinguished  from  the  case  of  suspension 
of  the  absolute  power  of  alienation  of  real  property, 
where  contingencies,  in  order  that  they  may,  as  such, 
occasion  suspension,  must  be  such  as  to  prevent  a  trans- 
fer of  absolute  title,  it  is  to  be  noticed  that  suspension 
of  absolute  ownership  of  personal  property,  by  reason  of 
the  fact  that  that  term  relates  both  to  alienability  and 
to  vesting,  is  occasioned  by  any  existing  contingency 
whatever. 

§  388.  If  the  contingency  is  such  as  to  prevent  trans- 
fer of  absolute  title,  then  the  suspension  of  absolute 
ownership  may  be  said  to  be  due,  at  least  in  part,  to 
inalienability;  and  even  if  the  contingency  is  such  as 
not  to  interfere  with  alienability,1  yet  the  suspension  of 
absolute  ownership  still  exists,  and  is  due  to  the  mere 
fact  that  some  interest  is  not  actually  vested.2  In  the 
latter  case,  the  suspension  corresponds  to  what,  in  the 
case  of  real  property,  is  designated  not  as  suspension, 
but  as  postponement  of  vesting.  So  long  as  the  right 
to  personal  property  remains  contingent,  the  owner- 
ship cannot  be  said  to  be  absolute.  As  soon,  however, 
as  all  interests  vest  and  are  also  alienable,  suspension 
of  the  absolute  ownership  ceases. 

§  389.  The  test  of  freedom  from  undue  suspension  of 
absolute  ownership  occasioned  by  a  contingency,  is 
found  in  the  question  whether  the  limitations  are  such 
that  by  the  end  of  two  lives  in  being  all  interests  will 
certainly  be  alienable,  and  also  will,  by  that  time,  either 
vest,  or  else,  by  the  terms  of  their  creation,  cease  to 
exist  even  as  possibilities.     For  so  long  as  it  is  uncer- 


1  Ham  v.  Van  Orden,  84  N.  Y.  257,  270;  Stringer  v.  Young,  191  N.  Y. 
157,  164. 
8  Matter  of  Wilcox,  194  N.  Y.  288. 


§  391.]  SUSPENSION  BY  CONTINGENCIES.  263 

tain  which  of  several  persons  in  being  will,  as  the  con- 
tingency may  turn  out,  become  absolutely  vested,  there 
is  a  suspension  of  absolute  ownership,  and  if  the  term 
is  not  measured  by  two  lives,  an  illegal  suspension  re- 
sults, even  though  there  is  no  trust  and  no  absence  of 
persons  in  being  among  whom  vesting  must  result 
finallv.     Such  a  limitation  is  whollv  void.1 

§  390.  "  For  a  contingent  limitation  of  a  remainder 
in  personal  property  to  be  valid,  the  contingency  must 
be  such  as  necessarily  to  occur  within  two  lives  in  being 
at  the  death  of  the  testator,"  2  or  at  the  date  of  the 
instrument,  other  than  a  will,  containing  the  limitation 
or  condition.3  Inasmuch  as  the  proposition  is  estab- 
lished that  "  the  inhibition  on  the  suspension  of  the 
power  of  alienation  is  not  the  sole  rule  against  perpe- 
tuities, as  to  realty,  it  is  evident  that  the  term  '  abso- 
lute ownership'  as  applied  to  personalty  (Pers.  Prop. 
L.  §  11)  must  be  interpreted  in  its  ordinary  and  natural 
sense,  and  that  the  same  is  suspended  where  the  title 
of  one  is  defeasible  in  favor  of  another,  and  that  neither 
one  can  be  said  to  possess  absolute  ownership,  even 
though  both  are  in  being  at  the  time."  4 

§  391.  It  will  be  noticed  that  this  proposition  does 
not  mean  that  personal  property  cannot,  like  real  prop- 
erty, be  vested  in  interest  subject  to  being  divested. 
Such  a  disposition  may  be  effected.5  What  it  does  mean 
is,  that  so  long  as  it  is  uncertain  who  may  yet  become 


1  Greenland  v.  Waddell,  116  N.  Y.  234,  244-5.  As  to  the  effect  of  Hie 
mere  existence  of  a  present  trust,  with  full  power  of  alienation  and  distri- 
bution, see  §  400. 

2  Matter  of  Wilcox,  194  N.  Y.  288,  306. 

3  Personal  Prop.  L.,  §  11. 

4  Matter  of  Wilcox,  194  N.  Y.  288,  300;  Hone  v.  Van  Schaick,  7  Pal. 
221;  Matter  of  Howland,  75  App.  Div.  207;  compare  Sawyer  v.  Cubby, 
146  N.  Y.  192;  and  other  cases  cited,  supra  §§  879-382. 

5  Bowditch  v.  Ayrault,  138  N.  Y.  222,  229.     Page  346,  infra. 


264  PERSONAL  PROPERTY.  [CH.  VII. 

the  absolute  owner,  even  though  all  the  persons  who 
may  do  so  are  in  being,  and  capable,  amongst  them,  if 
the  provisions  were  otherwise  valid,  of  conferring  abso- 
lute ownership,  the  "  absolute  ownership "  is  in  the 
meantime  suspended.1 

§  392.  And  in  Steinway  v.  Steinivay,2  the  opinion, 
after  calling  attention  to  the  fact  that  by  1  R.  S.  773, 
§  1  (Pers.  Prop.  L.  §  11),  it  is  in  other  respects  than 
the  suspension  of  absolute  ownership  for  not  more  than 
two  lives  in  being  that  limitations  of  future  and  contin- 
gent interests  in  personal  property  are  subject  to  the 
statutory  provisions  relating  to  real  property,  states 
that  "  the  absolute  ownership  is  suspended  in  one  of 
two  ways,  either  by  the  creation  of  future  estates  vest- 
ing upon  the  occurrence  of  some  future  or  contingent 
event,  or  by  the  creation  of  a  trust  which  vests  the 
estate  in  trustees,"  and  that  such  future  estates,  like 
future  estates  in  real  property,  remain  contingent 
11  whilst  the  person  to  whom  or  the  event  upon  which 
they  are  limited  to  take  effect  remains  uncertain."  It 
is  the  existence  of  a  contingency  due  to  the  uncer- 
tainty either  of  the  person,  or  of  the  event,  which  sus- 
pends "  absolute  ownership,"  as,  in  the  case  of  real 
property,  either  class  of  uncertainty  postpones  vesting, 
and  "  suspension  of  absolute  ownership,"  as  caused  by 
a  contingency,  is  not  confined,  as  in  the  case  of  suspen- 
sion of  the  absolute  power  of  alienation  of  real  prop- 
erty, to  the  case  of  such  contingencies  as  involve  the 
absence  of  "  persons  in  being  "  who  can,  amongst  them, 


1  The  same  feature  of  vesting  subject  to  being  divested  is  also  shown  in 
the  cases  where  title  vests  subject  to  open  and  let  in  new  members,  and 
thus  effect  a  partial  divesting  of  the  title  or  interest  of  the  earlier  members, 
or  a  total  divesting  in  case  of  death  before  final  and  absolute  vesting.  See 
also  the  cases  relating  in  particular  to  gifts  to  a  "class."  The  question 
of  the  extent  to  which  defeasible  vesting  satisfies  the  Rule  against  sus- 
pension of  absolute  ownership,  is  considered  in  Chapter  III. 

2  163  N.  Y.  183. 


§  394.]  SUSPENSION  BY  CONTINGENCIES.  265 

effectuate  the  transfer  of  an  absolute  title.  And  thus 
unless  the  contingency  is  restricted  within  the  term  of 
two  lives  in  being,  the  absolute  ownership  is  unduly 
suspended.1 

§  393.  It  may  follow  that  the  necessity  for  vesting 
by  the  end  of  the  statutory  period  may  apply,  in  the 
case  of  personal  property,  not  only  to  "  remainders,*' 
(a  term  which  is  constantly  employed  in  a  sense  corre- 
sponding to  that  of  remainders  in  real  property,2 )  but 
also  to  all  future  interests,  such  as  may  ripen  into 
ownership;  particularly  if  the  same  requirement  of 
vesting  in  the  case  of  real  property  shall  come  to  be 
held  applicable  to  future  estates  which  are  not  literally 
remainders.3 

§  394.  The  tests  to  be  applied  in  determining  whether 
a  given  future  estate  or  interest  in  personal  property 
is  in  fact  vested  or  contingent,  are  in  general  similar 
to  those  employed  in  relation  to  real  property,4  includ- 
ing the  controlling  effect  of  intent.5  But  the  differ- 
ences in  the  nature  of  personal  property,  and  in  the 
terms  ordinarily  used  to  dispose  of  it,  have  led  to  the 


1  Matter  of  Wilcox,  194  N.  Y.  288. 

5  Matter  of  Wilcox,  194  N.  Y.  288;  Matter  of  Brandreth,  169  N.  Y.  437, 
442;  Bliven  v.  Seymour,  88  N.  Y.  469,  478;  Matter  of  Accounting  of 
Denton,  102  N.  Y.  200;  Smith  v.  Van  Ostrand,  64  N.  Y.  278;  Norris  v. 
Beyea,  13  N.  Y.  273;  Tyson  v.  Blake,  22  N.  Y.  558;  Gray,  Perpetuities, 
2nd  Ed.  71-2;  Van  Vechten  v.  Van  Veghten,  8  Pai.  104,  107;  Bergmann 
v.  Lord,  194  N.  Y.  70,  76;  Matter  of  Ungrich,  48  App.  Div.  594,  596,  aff'd 
166  N.  Y.  618. 

3  Although  the  statute  is  not  satisfied  hy  mere  alienability,  as  distin- 
guished from  vesting,  yet  personal  property  may  in  fact  become  alienable 
before  it  vests.     Ham  v.  Van  Orden,  84  N.  Y.  257,  270. 

4  Pers.  Prop.  L.  §  11;  Steinway  v.  Steinway,  163  N.  Y.  183,  195;  com- 
pare Manice  v.  Manice,  43  N.  Y.  303,  380. 

5  Pers.  Prop.  L.  §  11 ;  Matter  of  Brandreth,  169  N.  Y.  4:!7.  442;  Bow- 
ditch  v.  Ayrault,  138  N.  Y.  222,  229;  Matter  of  Seebeck.  110  N.  Y.  211; 
Kilpatrick  v.  Barron,  125  N.  Y.  751,  754. 


266  PERSONAL  PROPERTY.  [CH.  VII. 

adoption  of  certain  special  principles  of  construction, 
which  are  set  forth  in  Chapter  XI. 

Suspension  by  Express  Trusts. 

§  395.  There  are  express  trusts  of  personal  property 
which  occasion  a  suspension  of  the  absolute  ownership,1 
and  there  are  others  which  do  not  do  so.2  So  far  as 
concerns  suspension  as  occasioned  solely  by  an  express 
trust,  as  such,  this  is  purely  a  question  of  alienability, 
or  in  other  words  the  presence  or  absence  of  persons 
in  being  who  can  transfer  an  absolute  title.3 

§  396.  Now  in  applying  this  principle  of  distinction, 
it  is  to  be  noticed  that  the  statutes  have  not  defined  or 
restricted,  as  they  have  done  in  relation  to  real  prop- 
erty, the  purposes  for  which  trusts  of  personal  property 
may  be  created,  and  they  may  therefore  exist  for  any 
purpose  not  in  its  nature  unlawful.4 


•Hooker  v.  Hooker,  166  N.  Y.   156;  Schey  v.  Schey,  194  N.  Y.  368 
Brewer  v.  Brewer,  11  Hun,  147,  aff'd  as  Bremer  v.  Penniman,  72  N.  Y 
603;  Cochrane  v.  Schell,  140  N.  Y.  516,  534;  Everitt  v.  Everitt,  29  N.  Y 
39,  71 ;  82  et  seq.;  Genet  v.  Hunt,  113  N.  Y.  158, 168;  Savage  v.  Burnham 
17  N.  Y.  561,  572;  Haynes  v.  Sherman,  117  K  Y.  433;  Underwood  v 
Curtis,  127  N.  Y.  523,  537 ;  Simpson  v.  Trust  Co.  of  America,  129  App 
Div.  200,  aff'd  197  N.  Y.  586;  Matter  of  Mount,  185  N.  Y.  162;  Schlereth 
v.  Schlereth,  173  N.  Y.  444;  Mansbach  v.  New,  58  App.  Div.  191,  aff'd 
170  N.  Y.  585;  Whitefield  v.  Crissman,  123  App.  Div.  233;  Stewart  v. 
Woolley,  121  App.  Div.  531. 

2  Wells  v.  Squires,  117  App.  Div.  502,  aff'd  191  N.  Y.  529. 

3  Wells  v.  Squires,  117  App.  Div.  502,  aff'd  191  N.  Y.  529. 

4  Cochrane  v.  Schell,  140  N.  Y.  516,  534;  Gilman  v.  Reddington,  24 
N.  Y.  9,  12;  Gilman  v.  McArdle,  99  N.  Y.  451  ;  Stettheimer  v.  Stettheimer, 
24  N.  Y.  State  Rep.  70  (s.  c.  sub  nom.  Stettheimer  v.  Tone,  omitting  from 
opinion  paragraph  on  this  point,  114  N.  Y.  501);  Barry  v.  Lambert,  98 
N.  Y.  300;  Hagerty  v.  Hagerty,  9  Hun,  175;  Everitt  v.  Everitt,  29  N.  Y. 
39,  71 ;  Matter  of  Carpenter,  131  N.  Y.  86;  Bork  v.  Martin,  132  N.  Y.  280; 
Hirsch  v.  Auer,  146  N.  Y.  13, 19;  Tabernacle  Church  v.  Fifth  Ave.  Church, 
60  App.  Div.  327,  334,  aff'd  172  N.  Y.  598;  Devoe  v.  Lutz,  133  App.  Div. 
356;  Matter  of  Wilkin,  183  N.  Y.  104, 109;  Johnston  v.  Hughes,  187  N.  Y. 
446;  Clark  v.  Clark,  147  N.  Y.  639;  Montignani  v.  Blade,  145  N.  Y.  Ill; 
Brown  v.  Spohr,  180  N.  Y.  201;  Neresheimer  v.  Smyth,  167  N.  Y.  202; 


§  397.]  SUSPENSION  BY  EXPRESS  TRUSTS.  267 

§  397.  Among  these  possible  forms  of  express  trusts, 
the  reason  why  certain  of  them  do  occasion  suspension 
of  absolute  ownership  is  found  in  the  provision  of  the 
Real  Property  Law,  §  105,  which  is  applicable  as  well 
to  personal  property,1  that  "  If  the  trust  is  expressed 
in  the  instrument  creating  the  estate,  every  sale,  con- 
veyance or  other  act  of  the  trustee,  in  contravention 
of  the  trust,  except  as  otherwise  provided  in  this  sec- 
tion, shall  be  absolutely  void;  "  and  in  the  provision  of 
§  15  of  the  Personal  Property  Law  that  u  The  right  of 
the  beneficiary  to  enforce  the  performance  of  a  trust 
to  receive  the  income  of  personal  property,  and  to  apply 
it  to  the  use  of  any  person,  cannot  be  transferred  by 
assignment  or  otherwise.     But  the  right  and  interest 


Matter  of  Cornell,  170  N.  Y.  423.  Thus  a  trust  of  real  and  personal  prop- 
erty, merely  "  for  the  benefit"  of  certain  children,  is  void  as  to  the  realty 
and  valid  as  to  the  personalty.  Hagerty  v.  Hagerty,  9  Hun,  175;  Oilman 
v.  McArdle,  99  N.  Y.  451,  456;  Everitt  v.  Everitt,  29  N.  Y.  39,  71.  See 
also  Schneider  v.  Heilbron,  115  App.  Div.  720,  101  N.  Y.  Supp.  152; 
Illensworth  v.  Ulensworth,  110  App.  Div.  399.  See  as  to  trusts  created 
by  a  deposit  in  a  savings  bank  "  in  trust ":  Martin  v.  Funk,  75  N.  Y.  134; 
Beaver  v.  Beaver,  117  N.  Y.  421 ;  Cunningham  v.  Davenport,  147  N.  Y. 
43;  Haux  v.  Dry  Dock  Savings  Institution,  2  App.  Div.  165,  aff'd  154 
N.  Y.  736;  Farleigh  v.  Cadman,  159  N.  Y.  169;  Matter  of  Totten,  179 
N.  Y.  112;  Tierney  v.  Fitzpatrick,  195  N.  Y.  433;  as  to  trust  in  estate  for 
years,  Bennett  v.  Rosenthal,  11  Daly,  91,  94.  As  in  the  case  of  real  prop- 
erty, trusts  of  personal  property  cease  when  they  reach  a  limit  imposed 
upon  them  in  their  creation;  and  also,  on  general  principles,  whenever 
their  purpose  has  failed.  Duration  of  trust  under  general  assignment  for 
creditors.  Mills  v.  Husson,  140  N.  Y.  99,  105.  So  their  creator  may 
reserve  a  power  of  revocation.  Rosenberg  v.  Rosenberg,  40  Hun,  91 
(compare  with  Pierson  v.  Drexel,  11  Abb.  N?  C.  150). 

•Personal  Prop.  L.  §  11;  Cochrane  v.  Schell,  140  N.  Y.  516,  534; 
Genet  v.  Hunt,  113  N.  Y.  158,  168;  Everitt  v.  Everitt,  29  N.  Y.  39.  71; 
Bergmann  v.  Lord,  194  N.  Y.  70,  76;  Oilman  v.  Reddington,  21  X.  Y.  9, 
15;  Fitzgerald  v.  Topping,  48  N.  Y.  438;  Horton  v.  Cantwell,  108  N.  Y. 
255,  267;  Baltes  v.  Union  Trust  Co.,  180  N.  Y.  183;  Matter  of  St  rant,  138 
N.  Y.  201;  T.  G.  T.  Co.  v.  C.  B.  &  Q.  R.  R.  Co.,  123  N.  Y.  37;  Matter 
of  Logan,  131  N.  Y.  456;  Doane  v.  Mercantile  Trust  Co.,  160  N.  Y.  494; 
Lockman  v.  Reilly,  95  N.  Y.64;  Wetmore  v.  Porter.  92  X.  Y.  76;  Douglas 
v.  Cruger,  80  N.  Y.  15;  Rhodes  v.  Caswell,  41  App.  Div.  229. 


268  PERSONAL  PROPERTY.  [CH.  VII. 

of  the  beneficiary  of  any  other  trust  in  personal  prop- 
erty may  be  transferred."  * 

§  398.  As  a  general  proposition,  and  apart  from  the 
fact  that  a  personal  property  trust  for  accumulation  is 
restricted  as  to  its  duration  to  not  more  than  two  lives 
in  being,  without  exception,2  the  statute  concerning 
accumulation  of  the  income  of  personal  property  is  sub- 
stantially the  same  as  that  concerning  accumulation  of 
the  rents  and  profits  of  real  property.3 

§  399.  By  §  23  of  the  Personal  Property  Law,  L. 
1909,  ch.  247,  it  is  now,  however,  further  provided  that 
"  Upon  the  written  consent  of  all  the  persons  benefici- 
ally interested  in  a  trust  in  personal  property  or  any 
part  thereof  heretofore  or  hereafter  created,  the  crea- 
tor of  such  trust  may  revoke  the  same  as  to  the  whole 
or  such  part  thereof,  and  thereupon  the  estate  of  the 
trustee  shall  cease  in  the  whole  or  such  part  thereof."  4 

1  Wells  v.  Squires,  117  App.  Div.  502,  aff'd  191  K  Y.  529;  Baltes  v. 
Union  Trust  Co.,  180  K  Y.  183,  186;  Graff  v.  Bonnett,  31  N.  Y.  9,  13; 
Campbell  v.  Foster,  35  N.  Y.  361,  371,  and  cases  cited;  Genet  v.  Hunt, 
113  jST.  Y.  158,  168;' Lent  v.  Howard,  89  K  Y.  169,  181;  Roosevelt  v. 
Roosevelt,  6  Hun,  31,  aff'd  64  N.  Y.  651 ;  Matter  of  Crossman,  113  N.  Y. 
503,  510;  Gott  v.  Cook,  7  Pai.  521,  536;  Cochrane  v.  Schell,  140  N.  Y. 
516,  534;  Stringer  v.  Young,  191  K  Y.  157,  164.  To  the  non-assignable 
class  of  trusts  to  receive  and  apply  income,  belong  also  trusts  to  receive 
and  accumulate  income.  See  §§  189  etseq.  Seethe  obscure  provision  con- 
cerning insurance  moneys,  added  to  Pers.  Prop.  L.,  §  15,  by  L.  1911,  Ch. 
327.     Cf.  Dom.  Rel.  L.,  §52. 

2  Pers.  Prop.  L.  §§  11,  16;  Manice  v.  Manice,  43  N.  Y.  303,  381;  supra, 
Chap.  IV.     Cf.  §  371. 

3  Pray  v.  Hegeman,  92  N.  Y.  508,  513;  Kilpatrick  v.  Johnson,  15  IS".  Y. 
322;  Cook  v.  Lowry,  95  N.  Y.  103;  Barbour  v.  DeForest,  95  K  Y.  13, 
15;  Gilman  v.  Reddington,  24  N.  Y.  9,  19;  McGrath  v.  Van  Stavoren, 
8  Daly,  454.  As  to  cases  where  the  property  is  partly  real  and  partly 
personal,  with  one  common  scheme  of  suspension,  see  Savage  v.  Burn- 
ham,  17  N.  Y.  561,  570;  Manice  v.  Manice,  43  K  Y.  303,  381  et  seq.; 
Stringer  v.  Young,  191  N.  Y.  157,  162. 

4  Hoskin  v.  Long  Island  Loan  &  Trust  Co.,  139  App.  Div.  258,  and 
compare  the  cases  cited  supra,  §  63,  under  the  former  statutes,  relating  to 
the  destruction  of  a  trust  through  merger. 


§  400.]  SUSPENSION  BY  EXPRESS  TRUSTS.  2G9 

If,  as  is  here  assumed,  the  right  to  revoke,  on  consent, 
is  to  be  strictly  confined,  as  in  the  terms  of  the  statute. 
to  the  creator  of  the  trust  personally,  the  law  as  it 
stood  before  this  addition  was  made,  still  applies  to 
testamentary  trusts,  and  also  (after  the  death  of  tip- 
creator  of  the  trust)  to  trusts  originally  created  during 
his  life,  and  still  continuing  in  force  after  his  death. 
The  various  general  references  in  this  chapter  to  the 
indestructible  character  of  certain  trusts  in  personal 
property,  are  to  be  understood  to  be  subject  to  such 
qualification  as  may  be  effected  by  the  provisions  of  the 
statute  above  quoted. 

§  400.  Neither  the  trustee  nor  the  beneficiary,  in 
trusts  affected  by  the  statutes  referred  to  in  §  282,  can 
effectuate  an  absolute  transfer  of  title  and  end  the 
trust.  As  already  seen,  the  beneficiary  cannot  be  em- 
powered to  do  so  even  by  an  express  provision  in  tin- 
instrument  creating  the  trust ;  but  as  to  the  trustee  the 
case  is  different,  for  it  is  only  such  of  his  acts  as  arc 
in  contravention  of  the  trust  that  are  forbidden,  and 
he  may,  accordingly,  by  an  express  provision  to  that 
effect,  be  duly  authorized,  at  any  time  in  his  discretion, 
to  sell  the  property,  distribute  the  proceeds,  and  end 
the  trust.  And  it  now  remains  to  consider  whether 
such  a  power  to  sell  and  distribute  obviates  a  suspen- 
sion of  absolute  ownership  which  would  otherwise 
exist.  If  it  does  not,  the  term  of  such  a  trust  must  still, 
in  spite  of  the  power,  be  restricted  within  the  statutory 
period;  but  if  it  does,  then  the  term  of  the  trust  need 
not  be  thus  restricted.  We  will,  in  discussing  this  ques- 
tion, assume  an  illustrative  case  of  a  trust  to  receive 
and  apply  income,  to  continue  until  the  trustee  shall 
decide  at  any  time  within  five  years,  to  sell  the  prop- 
erty, and  distribute  the  proceeds  as  provided  in  the  in- 
strument.    If  there    the    absolute    ownership    is    sus 


270  PERSONAL  PROPERTY.  [CH.  VII. 

pended  at  all,  the  term  is  evidently  illegal,  because  not 
measured  by  two  lives  in  being. 

§  401.  It  might  appear,  at  first  sight,  that  a  solution 
of  the  difficulty  could  be  found  in  the  mere  meaning  of 
the  word  "  absolute."  It  is  the  "  absolute  ownership  " 
that  must  not  be  suspended,  and,  literally  understood, 
this  requirement  would  render  illegal,  beyond  two  lives, 
any  qualification  whatever  upon  the  ownership.  It 
was  suggested,  for  example,  in  Converse  v.  Kellogg,1 
that  mere  postponement  of  possession  is  inconsistent 
with  absolute  ownership,  even  though  all  interests  are 
alienable  and  vested.  But  this  view  has  not  received 
the  support  of  the  later  authorities.  Mere  postpone- 
ment of  possession  does  not  operate  to  suspend  abso- 
lute ownership,2  and  "  whatever  was  said  in  Converse 
v.  Kellogg,  (7  Barb.  596),  which  warrants  an  inference 
that  such  deferring  of  payment  amounts  to  a  suspension 
of  the  absolute  ownership,  has  no  sanction  in  the  de- 
cisions of  this  court."  3  Thus  upon  the  question  now 
under  consideration,  no  argument  can  be  based  on  the 
theory  that  the  term  "  absolute  "  must  be  understood 
literally.4 

§  402.  Leaving  that  theory,  therefore,  the  argument 
might  next  proceed  to  the  proposition  that  the  power 
of  sale  now  in  question  cannot  obviate  the  suspension 
of  absolute  ownership  because,  although  the  trustee 
can  sell  and  distribute  whenever  he  chooses,  yet  in  fact 
he  may  not  choose  to  do  so  until  the  five  year  term  has 
expired,  and  thus  the  suspension  may  continue  for  five 

1  7  Barb.  590. 

8  §  126. 

3Bliven  v.  Seymour,  88  K  Y.  469,  478 ;  Steinway  v.  Steinway,  163  N*. 
Y.  183,  195;  Warner  v.  Durant,  76  N.  Y.  133. 

4  See  also  Wells  v.  Squires,  117  App.  Div.  502,  aff'd  191  N.  Y.  529; 
Williams  v.  Montgomery,  148  N.  Y.  519;  Brown  v.  The  Mutual  Trust  Co., 
22  Weekly  Digest,  395. 


§  404.]  SUSPENSION  BY  EXPRESS  TRUSTS.  271 

years;  and  that  the  mere  possibility  of  a  suspension 
thus  unduly  measured  is  sufficient  to  condemn  the 
scheme  as  illegal.  This  line  of  argument  would  be  en- 
tirely correct  if  confined  to  cases  of  actual  suspension 
of  absolute  ownership.  If  such  a  suspension  might 
possibly  continue  for  a  term  not  limited  to  two  lives  in 
being,  the  provision  which  causes  it  is  certainly  void. 
But  the  question  we  are  now  considering  is  whether,  in 
our  assumed  case,  there  is  any  suspension  at  all  of  the 
absolute  ownership,  and  on  that  point  the  argument 
just  stated  throws  no  light.  It  only  brings  us  back  to 
the  inquiry  whether  the  term  absolute  ownership  does 
involve  anything  more  than  vesting  and   alienability. 

§  403.  Under  these  circumstances  we  naturally  turn 
to  the  law  relating  to  real  property  for  aid.  There  we 
find  (apart  from  trusts  for  charity)  only  four  author- 
ized classes  of  express  trusts,  all  of  which  necessarily 
involve  title  in  the  trustee,1  but  only  two  of  which  inter- 
fere with  alienability,  and  therefore  only  those  two 
need  be  restricted,  as  to  their  term,  within  any  statu- 
tory period. 

§  404.  Thus  it  at  once  appears  that  there  are  such 
things,  in  real  property,  as  express  trusts,  vesting  title 
in  the  trustee,  and  yet  occasioning  no  suspension  of  the 
absolute  power  of  alienation.  In  such  cases,  all  titles 
and  interests  being  alienable  and  vested,  the  scheme  is 
valid,  even  though  it  may  continue  for  a  period  not 
measured  by  lives.  Corresponding  trusts  in  personal 
property  naturally  operate  in  the  same  manner,  after 
title  has  once  vested  in  the  trustee.  In  fact,  whether 
there  is  any  express  trust  or  not,  the  legal  title  to  all 

>  Chapter  TV;  Gilman  v.  Reddington,  24  N.  Y.  9.  15;  Mutter  of  Straut, 
126  N.  Y.  201;  Bergmann  v.  Lord,  104  N.  Y.  70,  76;  Cochrane  v.  Bchell, 
140  N.  Y.  516,  534;  Lockman  v.  Reilly,  95  N.  Y.  64. 


272  PERSONAL  PROPERTY.  [CH.  VII. 

the  personal  property  of  a  testator  vests  in  the  first  in- 
stance in  the  executor,  as  trustee  for  the  creditors, 
legatees  and,  in  the  absence  of  specific  disposition,  those 
entitled  by  law  to  the  property.1  The  executor  has  the 
legal  title,  but  no  contingency  and  no  inalienability, 
and  so  no  suspension  of  absolute  ownership,  results, 
and  no  "  statutory  period "  based  on  lives  need  be 
specified.2 

§  405.  In  the  case  wTe  are  now  examining,  the  power 
to  sell  and  distribute  is  expressly  conferred.  In  real 
property,  such  a  disposition  may  satisfy  both  the  Rules 
under  consideration,  Rule  II,  Vesting,  because  the  trust 
estate  itself  is  vested,  and  in  no  way  prevents  the  vest- 
ing of  any  future  interest,  in  the  property  or  the  pro- 
ceeds, and  Rule  I,  Alienability,  because  of  the  continu- 
ing power  to  sell  and  distribute.  Under  such  circum- 
stances the  term  of  the  trust  need  not  be  confined 
within  the  "  statutory  period."  3  Now  in  the  absence 
of  any  controlling  reason  to  the  contrary,  the  laws  in 
relation  to  real  property,  in  this  field,  must  necessarily 
be  applied,  on  the  same  state  of  facts,  to  personal  prop- 
erty.4 

§  406.  The  only  qualification  of  this  general  effect, 


1  Blood  v.  Kane,  130  N.  Y.  514;  Lockman  v.  Reilly,  95  N.  Y.  64,  72; 
Wager  v.  Wager,  89  N.  Y.  161;  Smith  v.  Edwards,  88  N.  Y.  92.  104; 
Warner  v.  Durant,  76  K  Y.  133,  136 ;  Steinway  v.  Steinway,  163  N.  Y. 
183,  200;  Matter  of  Mullon,  145  N.  Y.  98,  104;  Greenland  v.  Waddell,  116 
N.  Y.  234,  241;  Matter  of  Brandreth,  169  N.  Y.  437,  441-2;  Clark  v.  Cam- 
mann,  160  N.  Y.  315;  Peoples'  Trust  Co.  v.  Flynn,  188  N.  Y.  385;  Rose  v. 
Rose,  4  Abb.  Ct.  App.  Dec.  108.  See  also  Cabbie  v.  Cabbie,  111  App. 
Div.  426;  Matter  of  Maccafil,  127  App.  Div.  21;  Porter  v.  Baldwin,  139 
App.  Div.  278. 

8  Steinway  v.  Steinway,  163  N.  Y.  183;  Robert  v.  Corning,  89 
N.  Y.  225,  241. 

3  Supra,  §§  42  et  seg. 

4Pers.  Prop.  L.,  §11;  Williams  v.  Montgomery,  148  N.  Y.  519,  526; 
supra,  §  385. 


§  407.]  SUSPENSION  BY  EXPRESS  TRUSTS.  273 

upon  the  existence  of  suspension,  of  a  continuing  power 
to  sell  and  distribute,  also  applies  to  both  classes  of 
property,  and  in  stating  it  we  come  now  to  the  leading 
principle  upon  the  subject  now  under  discussion.  For 
whether  or  not  a  given  power  to  sell  and  distribute 
operates  to  obviate  a  suspension  otherwise  existing, 
depends  only  on  whether  or  not  the  power  itself  is 
valid ;  and  whether  the  power  is  valid  or  void,  depends 
on  the  legality  or  the  illegality  of  its  purpose,  and  the 
end  it  is  intended  to  effect.  "  The  validity  of  these 
testamentary  dispositions  is  to  be  determined  by  the 
question  of  the  legality  of  the  ultimate  disposition  of 
the  corpus  of  the  estate  for  which  the  power  of  sale  or 
distribution  is  given."1  "The  statute  of  perpetuities 
is  pointed  only  to  the  power  of  alienation,  and  not  at 
all  to  the  time  of  its  actual  exercise,  and  when  a  trust 
for  sale  and  distribution  is  made,  without  restriction 
as  to  time,  and  the  trustees  are  empowered  to  receive 
the  rents  and  profits,  pending  the  sale  for  the  benefit 
of  beneficiaries,  the  fact  that  the  interest  of  the  benefici- 
aries is  inalienable  by  statute,  during  the  existence  of 
the  trust,  does  not  suspend  the  power  of  alienation,  for 
the  reason  that  the  trustees  are  persons  in  being,  who 
can,  at  any  time,  convey  an  absolute  fee  in  possession. 
The  only  question  which,  in  such  a  case,  can  arise  under 
the  statute  of  perpetuities,  is,  whether  the  trusts  in 
respect  to  the  converted  fund,  are  legal  or  operate  to 
suspend  the  absolute  ownership  of  the  fund,  beyond 
the  period  allowed  by  law."  2 

§  407.  Thus  the  mere  existence  of  an  express  trust 
of  personal  property  does  not  necessarily  involve  any 


'Stoiber  v.  Stoiber,  40  App.  Div.  156,  161;  Whitefield  v.  Crissman, 
123  App.  Div.  233,  235;  Garvey  v.  McDevitt,  72  N.  Y  556,  564  ;  Hender- 
son v.    Henderson,  113  N.  Y.  1;  Hope  v.   Brewer.    186  X.  Y.   136,   185; 

Matter  of  Wilkin.  183  N.  Y.  104:  Marvin  v.  Smith,  4G  N.  Y.  571. 
'Robert  v.  Corninsr.  W  N.  Y.  225,  236. 


274  PERSONAL  PROPERTY.  [CH.  VII. 

suspension  of  alienability,  or  any  postponement  of 
vesting;  and  as  these  are  the  only  topics  covered  by 
Rules  I  and  II  in  relation  to  real  property,  and  as  there 
is  no  reason  for  reading  into  Rule  III,  in  relation  to 
personal  property,  any  requirement  in  addition  to 
those  found  in  Rules  I  and  II,  and  on  the  contrary  it  is 
to  be  assumed  that  the  same  principles  apply,  we  must, 
it  appears,  understand  that  "  absolute  ownership " 
comprises  only  alienability  and  vesting,  and  that  if 
those  elements  are  present,  the  existence  of  an  express 
trust  is  not  inconsistent  with  "  absolute  ownership."  1 

§  408.  It  is  true  that  the  existence  of  an  express  trust 
is  often  referred  to  as  suspending  absolute  ownership, 
and  so  it  does  if  it  causes  inalienability.  The  fact  that 
there  was  no  trust  to  interfere  with  absolute  owner- 
ship is  thus,  for  example,  referred  to  in  Steinway  v. 
Steinivay,2  and  Bliven  v.  Seymour.3  But  there  the 
trust,  if  there  had  been  one,  would  necessarily  have 
caused  suspension  because  there  was  no  power  at  all  to 
sell  and  distribute  pending  the  term.  It  was  on  this 
account  that  that  question  was  there  involved.  And  so 
it  is  expressly  stated  in  Williams  v.  Montgomery,4 
Smith  v.  Edicards,5  and  Robert  v.  Corning?  If,  then, 
where  there  is  present  such  a  power,  a  suspension  does 
still  exist,  it  is  due  to  some  other  cause  arising  out  of 
the  future  disposition  of  the  proceeds  of  the  sale.7 

§  409.  All  this  is  very  clearly  illustrated  by  the  two 
cases  of  Robert  v.  Corning,8  and  Underwood  v.  Curtis? 

'Metcalfe  v.  Union  Trust  Co.,  181  N.  Y.  39,  44. 

2163N.  Y.183,  197. 

388N.  Y.  469,  478. 

4148N.  Y.519,  525. 

688N.  Y.92. 

«89N.  Y.  225,  236. 

7  Matter  of  Wilcox,  194  N.  Y.  288,  305-6 ;  Stoiber  v.  Stoiber,  40  App. 
Div.  156. 

8  89  N.  Y.  225. 
9 127  N.  Y.  523. 


§  409.]  SUSPENSION  BY  EXPRESS  TRUSTS.  275 

In  both,  there  was  a  power  of  sale  and  distribution,  the 
exercise  of  which  was  required  only  by  the  end  of  a  term 
of  years,  but  was  authorized  at  any  time  during  that 
term;  in  both,  the  power  was  such  as  to  effect  an  equi- 
table conversion  of  the  property  into  personalty  as  of 
the  time  of  the  testator's  death;  and  in  both  the  ex- 
pressed purpose  of  authorizing  a  delay  in  the  actual 
sale  and  distribution  was  to  prevent  an  unnecessary 
sacrifice  of  the  property.  Both  cases,  also,  show  the 
feature,  pending  the  actual  sale  and  distribution,  of  an 
express  trust  to  receive  and  apply  the  income;  for  in 
the  Underwood  case  such  an  express  trust  was  specific- 
ally constituted,  and  in  the  Robert  case,  while  it  is 
not  actually  held  that  there  was  a  precedent  trust  es- 
tate, the  court  did  say,1  that  "  The  presence  of  the  legal 
estate  in  the  trustees  pending  the  sale,  if  not  absolutely 
necessary  to  enable  them  to  perform  the  duty  imposed 
upon  them,  to  divide  the  net  income  and  profits,  is  a 
convenient  and  natural  arrangement,  and  the  vesting 
of  the  legal  title  in  the  trustees  by- implication,  would 
not,  as  we  construe  the  will,  defeat  or  disturb  any  of  its 
provisions,  but  would  be  in  harmony  with  its  scheme 
and  dispositions,"  and  that2  "it  is  unnecessary  to  de- 
termine whether  the  executors  took  under  the  will  in 
question,  the  legal  title  to  the  real  estate,  for  in  the 
view  we  take  of  the  will,  there  was  no  suspension  of 
the  power  of  alienation,  whether  the  executors  took  a 
trust  estate,  or  were  simply  donees  of  a  trust  power." 
For  our  present  purpose,  therefore,  we  may  regard  both 
cases  as  exactly  alike  in  all  the  respects  already  men- 
tioned. And  vet  in  the  Robert  case  the  scheme  was 
held  valid,  and  in  the  Underwood  ease  it  was  held  void; 
and  the  difference  in  the  results  is  to  be  found  in  one 


1  Page  237 
5  Page  2:5s. 


3  Robert  v.  Corning,  89  N.  Y.  225,  238. 


276  PERSONAL  PROPERTY.  [CH.  VII. 

difference,  yet  to  be  noticed,  in  the  facts,  which  is  the 
very  same  difference  that  would  have  produced  the  same 
divergent  results  in  the  case  of  real  property. 

§  410.  For  in  Robert  v.  Corning  (subject  only  to  the 
assumed  precedent  trust,  and  the  power,  and  to  a  devo- 
lution of  interest  in  given  shares  which  must,  if  ever, 
take  place  as  to  each  share  within  one  life  in  being  and 
therefore  introduced  no  complication),  the  interests  of 
the  distributees  were  absolutely  and  beneficially  vested 
at  testator's  death  in  persons  in  being,  and  the  exist- 
ence, as  assumed  by  the  court  for  purposes  of  argument, 
of  the  express  trust  coupled  with  the  discretionary  au- 
thority to  postpone,  for  a  period  not  measured  by  lives, 
the  actual  sale  and  distribution,  was  held  not  to  sus- 
pend the  "  absolute  ownership."  In  Undertcood  v. 
Curtis,  on  the  other  hand,  two  of  the  distributees  were 
to  take  upon  further  express  trusts  each  covering  one 
quarter  of  the  entire  fund.  These  latter  trusts  would 
in  themselves  effect  a  suspension  each  for  a  term  which, 
though  bounded  by  a  life,  could  not  begin  until  the 
power  of  sale  and  distribution  was  in  fact  exercised. 
Upon  that  ground,  the  court  found  these  final 
trusts  void.  As  they  must  certainly  cease,  as  to 
each  share,  by  the  end  of  two  lives,  the  reasoning  of  the 
court  on  that  particular  feature,  does  appear  out  of 
line  with  all  other  decisions a ;  but  the  point  here  is,  that 
taking  that  finding  as  a  starting  point,  the  conclusion 
of  the  court  necessarily  follows,  that  the  power  to  sell, 
being  thus  merely  a  power  to  effectuate  void  trusts, 
was  itself  void,  and  so  could  not  operate  to  obviate  the 
suspension  otherwise  occasioned  by  the  intermediate 
trust.  It  is  the  existence  of  these  future  and  illegal 
trusts,  the  assumed  illegality  of  which  involved  the 
invalidity  of  the  entire  scheme,   that  constitutes  the 


1  §§  97,  98,  Supra. 


§  411.]  SUSPENSION  BY  EXPRESS  TRUSTS.  277 

sole  material  distinction  between  that  case  and  Robert 
V.  Corning.  No  other  ground  can  be  found  for  the 
difference  in  the  resulting  decisions  of  the  court.1  And 
so  we  are  brought  back  to  the  test  set  up  in  Robert 
V.  Corning?  according  to  which  in  cases  of  the  class 
under  discussion,  suspension  of  "  absolute  ownership  ': 
depends  on  whether  the  disposition  to  be  effected  under 
the  power  is  valid  or  void.3 

§  411.  As  the  reason  for  this  distinction  is  found  in 
the  legality,  in  the  one  case,  and  the  illegality  in  the 
other,  of  the  purpose  of  the  power,  it  follows  that  it  is 
not  confined  to  cases  where  the  future  disposition  is 
illegal  because  it  is  a  trust  that  causes  the  undue  sus- 
pension. An  undue  suspension  occasioned  by  a  con- 
tingency would  have  the  same  effect  upon  the  validity 
of  the  power,  and  so  in  turn  upon  the  precedent  trust 
estate.  Nor  is  the  question  just  discussed  confined  to 
cases  where  the  power  is  one  to  sell  and  distribute.  Any 
power  under  which  an  absolute  title  could  be  conveyed, 
and  the  trust  or  contingency  extinguished,  would  have 
the  same  effect.4 


'Whitefield  v.  Crissman,  123  App.  Div.  233;  Wells  v.  Squires,  117 
App.  Div.  502,  aff'd  191  N.  Y.  529;  Mutter  of  Wilkin,  183  N.  Y.  104  ; 
Keyser  v.  Mead.  53  Misc.  114;  Roosevelt  v.  Roosevelt,  6  Hun,  81,  afl"d 
64 N.  Y.  651 ;  Matter  of  Stfaut,  126  N.  Y.  201 ;  Hope  v.  Brewer,  186  N.  Y. 
126,  135;  Deegan  v.  Wade,  144  N.  Y.  573,  576;  Chanler  v.  New  York 
Elevated  R.  R.  Co.,  34  App.  Div.  305;  Stoiber  v.  Stoiber,  40  App.  Div. 
156;  Hagemeyer  v.  Saulpaugh,  97  App.  Div.  535,  544;  Henderson  v. 
Henderson,  113  N.  Y.  1;  Trowbridge  v.  Metealf,  5  App.  Div.  318,  nfT'd 
158  N.  Y.  682;  Matter  of  Brown,  154  N.  Y.  313,  324;  Stewart  v.  Woolley, 
121  App.  Div.  531. 

2  89  N.  Y.  225,  236. 

3 Matter  of  Ackermann,  36  Misc.  752,  74  N.  Y.  Supp.  477,  is  apparently 

not  thus  explainable. 

4  Illustrations  of  the  principles  which  determine  the  character,  as  vested 
or  contingent,  of  future  estates  which  are  to  be  conveyed  by  the  trustee  at 
the  end  of  a  precedent  trust  term,  are  cited  above,  Chap.  IV. 


278  PERSONAL  PROPERTY.  [CH.  VII. 

Suspension  by  Powers. 

§  412.  "  Powers,  as  they  existed  by  law  on  the  thirty- 
first  day  of  December,  eighteen  hundred  and  twenty- 
nine,  are  abolished.  Hereafter  the  creation,  construc- 
tion and  execution  of  powers,  affecting  real  property, 
shall  be  subject  to  the  provisions  of  this  article,"  con- 
cerning Powers.1  This  statutory  provision  includes 
all  powers  (except  certain  powers  of  attorney 
there  specified)  both  as  to  real  and  personal  property, 
and  "  by  analogy,  the  rules  for  the  creation,  construc- 
tion and  execution  of  powers  as  to  real  estate  should  be 
applied,  so  far  as  they  can  be,  to  personal  estate."  2 

The  Statutory  Period. 

§  413.  In  the  case  of  personal  property  this  is  in  all 
cases  two  lives  in  being  at  the  creation  of  the  interest  in 
question,3  without  exception  save  that  chattels  real 
are  affected  by  the  Eule  relating  to  real  property.4 


1  Real  Prop.  L.,  §  130. 

2Hutton  v.  Benkard,  92  N.  Y.  295;  Real  Prop.  L.,  §  130;  Matter  of 
Cooksey,  182  N.  Y.  92;  Cutting  v.  Cutting,  86  N.  Y.  522;  Fargo  v, 
Squiers,  154  N.  Y.  250,  258;  Mills  v.  Husson,  140  N.  Y.  99;  Cook  v. 
Lowry,  95  N.  Y.  103,  111;  Matter  of  Brown,  154  N.  Y.  313,  324;  Matter 
of  Moehring,  154  N.  Y.  423. 

3  Supra,  %  371.  In  the  case  of  suspension  occasioned  by  an  instrument 
in  execution  of  a  power,  the  period  of  two  lives  is,  as  in  the  case  of  real 
property,  computed  from  the  time  of  the  creation  of  the  power,  §  412. 

4  Supra,  §  371. 


CHAPTER  VIII. 

GIFTS  FOR  CHAKITY. 

Prior  to  Laws  1893,  Chapter  701. 
Since  Laws  1893,  Chapter  701. 

Prior  to  Laws  1893,  Chapter  701. 

§  414.  By  the  Revised  Statutes,  1  R.  S.  727,  §  45, 
Real  Prop.  L.,  §  91,  express  trusts  concerning  real  prop- 
erty, except  the  four  classes  authorized  by  1  R.  S.  728, 
§  55,  Real  Prop.  L.,  §  96,  were  abolished.  Among  others 
not  thus  authorized  were  trusts,  as  such,  for  charitable 
and  religious  purposes.1  It  was  established  that  the 
former  English  law  of  charitable  uses  was  not  in  force 
in  New  York.2  It  had  frequently  been  held,  also,  that 
the  statutory  abolition  of  all  trusts,  except  the  four 
specified  classes,  did  not  apply  to  personal  property 
trusts,  so  that  charitable  trusts  of  personal  property 
were  not  abolished,  though  their  term  was  restricted  to 
two  lives  in  being.3 

§  415.  But  present  gifts,  not  to  a  trustee,  but  directly 
to  a  corporation  organized  for  religious,  educational, 


1  Holmes  v.  Mead,  52  N.  Y.  332,  339;  Bascom  v.  Albertson,  34  N.  Y.  584, 
615;  Levy  v.  Levy,  33  N.  Y.  97,  134;  Downing  v.  Marshall,  23  N.  Y.  3G6; 
Riker  v.  Leo,  115  N.  Y.  93,  102;  Cottman  v.  Grace,  112  N.  Y.  299,  806-7; 
Beecher  v.  Yale,  45  N.  Y.  Supp.  622;  Wilson  v.  Lynt,  30  Barb.  124. 

'Cottman  v.  Grace,  112  N.  Y.  299,  306-7;  Holmes  v.  Mead.  52  N.  Y. 
332;  Holland  v.  Alcock,  108  N.  Y.  312,  336;  Bascom  v.  Albertson,  34  N. 
Y.  584.  The  doctrine  of  cy  pres  then  had  no  place  in  our  law.  Beekman 
v.  Bonsor,  23  N.  Y.  298,  310;  Levy  v.  Levy,  33  N.  Y.  97,  138;  Bascom  v. 
Albertson,  34  N.  Y.  584.  See  Will  of  Fuller,  75  Wis.  431,  and  Webster  v. 
Morris,  66  Wis.  364,  391.     Also  Appendix,  infra. 

3  Holmes  v.  Mead,  52  N.  Y.  332,  343;  Levy  v.  Levy,  33  N.  Y.  97.  133-4, 
Adams  v.  Perry,  43  N.  Y.  487,  497;  Fairchild  v.  Edson,  154  N.  Y.  199. 

279 


280  GIFTS  FOR  CHARITY.  [CH.  VUL 

charitable  or  benevolent  uses,  were  supported  on  the 
theory  that  they  did  not  constitute  trusts  at  all,  but 
were  direct  gifts  to  the  corporation  for  its  own  peculiar 
purposes,  and  that  therefore  the  title  in  the  corporation 
did  not  in  itself  effect  any  suspension  of  the  absolute 
power  of  alienation,  or  of  absolute  ownership.1 

§  416.  Under  this  view  also  a  future  gift  for  its  own 
purposes  to  a  corporation  to  be  formed,  was  valid  if  the 
period  within  which  it  was  to  be  formed  and  to  become 
vested  was  limited  to  a  term  measured  by  the  usual 
"  statutory  period  " ;  but  if  this  measure  were  omitted, 
and  the  gift  were  given  merely  to  a  corporation  to  be 
created,  then  the  disposition  was  void.2 


1  Holland  v.  Alcock,  108  N.  Y.  312,  336-7;  Bascom  v.  Albertson,  34  N. 
Y.  584,  620;  Bird  v.  Merklee,  144  N.  Y.  544;  Matter  of  Griffin,  167  N.  Y. 
71;  Matter  of  Durand,  194  N.  Y.  477,  487;  Wetmore  v.  Parker,  52  N.  Y. 
450;  Robert  v.  Corning,  89  K  Y.  225,  241;  Matter  of  First  Presb.  Soc, 
106  N.  Y.  251 ;  Riker  v.  Leo,  115  N.  Y.  93,  102.  And  one  charitable  cor- 
poration might  in  some  cases  hold  for  the  benefit  of  another.  Chamberlain 
v.  Chamberlain.  43  N.  Y.  424,  435.  See  Dodge  v.  Williams,  46  Wis.  70; 
Matter  of  Griffin,  167  N.  Y.  71. 

As  to  the  power  of  a  corporation  to  take  by  grant,  devise  and  bequest, 
Sherwood  v.  Am.  Bible  Soc'y,  4  Abb.  Ct.  App.  Dec.  227;  Downing  v. 
Marshall,  23  N.  Y.  366,  383.  Foreign  corporation ;  foreign  community ; 
state  or  nation.  In  Matter  of  Huss,  126  N.  Y.  537,  s.  c.  44  Alb.  L.  J.  108 ; 
Matter  of  Fox,  52  N.  Y.  530. 

8  People  v.  Simonson,  126  N.  Y.  299;  Lougheed  v.  D.  B.  Church,  129 
N.  Y.  211;  Booth  v.  Baptist  Church,  126  N.  Y.  215;  Tilden  v.  Green,  130 
N.  Y.  29,  47;  Read  v.  Williams,  125  N.  Y.  560,  569,  570;  St.  John  v. 
Andrews  Institute,  191  N.  Y.  254,  267;  Riker  v.  North  American  Relief 
Soc'y,  133  N.  Y.  519;  Downing  v.  Marshall,  23  N.  Y.  366;  Bascom  v. 
Albertson,  34  N.  Y.  584,  615;  Rose  v.  Rose,  4  Abb.  Ct.  A.pp.  Dec.  108; 
Phelps'  Ex'r  v.  Pond,  23  N.  Y.  69,  77;  Adams  v.  Perry,  43  N.  Y.  487, 
498;  Cruikshank  v.  Home  for  the  Friendless,  113  N.  Y.  337;  Cottman  v. 
Grace,  112  N.  Y.  299,  306;  Burrill  v.  Boardman,  43  N.  Y.  254;  Shipman 
v.  Rollins,  98  N.  Y.  311 ;  Sherwood  v.  Am.  Bible  Society,  4  Abb.  Ct.  App, 
Dec.  227;  Marx  v.  McGlynn,  88  N.  Y.  357,  376;  Levy  v.  Levy,  33  N.  Y. 
97,  134;  White  v.  Howard,  46  N.  Y.  144,  163;  Owens  v.  Missionary 
Society,  14  N.  Y.  380;  Manice  v.  Manice,  43  N.  Y.  303,  314,  387;  Jessup 
v.  Pringle  Memorial  Home,  27  Misc.  427;  47  App.  Div.  622. 
The  Legislature  might,  of  course,  create  exceptions  to  its  general  system, 


§  418.]  SINCE  LAWS  1893,  CHAPTER  701.  281 

§  417.  Instead  of  thus  attempting  an  absolute  gift 
to  a  corporation  existing  or  to  be  formed,  it  was  per- 
missible to  give  real  or  personal  property  in  trust, 
during  the  statutory  period,  for  any  of  the  purposes  au- 
thorized, in  the  ease  of  real  property,  by  1  R.  S.  728, 
§  55,  or,  in  the  case  of  personal  property,  for  any  pur- 
pose whatever,  if  not  unlawful;  but  all  such  trusts,  in 
order  to  be  valid,  must  be  free  from  indefiniteness  or 
uncertainty  in  respect  to  the  beneficiaries.1 

Since  Laws  1893,  Chapter  701. 

§  418.  The  present  statute  however,  L.  1893,  Chap. 
701,  as  amended,  removes  some  of  the  difficulties  which 
formerly  prevented  the  carrying  out  of  attempted  trusts 
for  charitable  and  similar  purposes;  for  by  Real  Prop. 
L.,  §  113,  it  is  provided  that : 

"  1.  No  gift,  grant,  or  devise  to  religious,  educational, 
charitable  or  benevolent  uses,  which  shall  in  other  re- 
spects be  valid  under  the  laws  of  this  state,  shall  be 
deemed  invalid  by  reason  of  the  indefiniteness  or  uncer- 
tainty of  the  persons  designated  as  the  beneficiaries 


for  example  L.  1890,  Ch.  77;  R.  L.  Ch.  60,  sec.  4  (1813);  Church  of 
Redemption  v.  Grace  Church.  68  N.  Y.  570,  583;  Foote  v.  Bryant,  47 
N.  Y.  544;  Reformed  P.  D.  Church  v.  Brown,  4  Abb.  Ct.  A  pp.  Dec.  31 ; 
L.  1839,  Ch.  174;  White  v.  Miller,  71  N.  Y.  118.  For  a  review  of  the 
English  law,  and  of  the  changes  that  later  took  place  under  our  statutes, 
see  Holland  v.  Alcock,  108  N.  Y.  312;  Bascom  v.  Albertson,  34  N.  Y.  584, 
600;  Ayres  v.  Trustees  of  the  M.  E.  Church,  3  Sandf.  351 ;  Yates  v. 
Yates,  9  Barb.  324,  338,  339,  341;  Fountain  v.  Ravenel,  17  How.  (U.  S.) 
369;  Levy  v.  Levy,  33  N.  Y.  97,  132;  Matter  of  McGraw,  111  N.  Y.  66; 
Williams  v.  Williams,  8  N.  Y.  525;  Allen  v.  Stevens,  161  N.  Y.  122 ; 
Matter  of  Griffin,  167  N.  Y.  71,  and  other  cases  cited  below. 

'Allen  v.  Stevens.  161  N.  Y.  122;  Read  v.  Williams.  125  N.  Y.  560; 
People  v.  Powers,  147  N.  Y.  104;  Amherst  College  v.  Hitch.  151  N  V 
282,  330;  Morton  v.  Woodbury,  153  N.  Y.  243;  Fairchild  v.  Edson,  154 
N.  Y.  199;  Matter  of  Ingerso'll,  131  N.  Y.  573;  Smith  v.  Chesebrough, 
176  N.  Y.  317;  Rikerv.  Leo,  115  N.  Y.  93;  and  Riker  v.  North  American 
Relief  Soc'y,  133  N.  Y.  519. 


282  GIFTS  FOR  CHARITY.  [CH.  VIII. 

thereunder  in  the  instrument  creating  the  same.  If  in 
the  instrument  creating  such  a  gift,  grant  or  devise  there 
is  a  trustee  named  to  execute  the  same,  the  legal  title 
to  the  lands  or  property  given,  granted,  or  devised  for 
such  purposes  shall  vest  in  such  trustee.  If  no  person 
be  named  as  trustee  then  the  title  to  such  lands  or 
property  shall  vest  in  the  supreme  court. 

"  2.  The  supreme  court  shall  have  control  over  gifts, 
grants  and  devises  in  all  cases  provided  for  by  subdi- 
vision one  of  this  section,  and  whenever  it  shall  appear 
to  the  court  that  circumstances  have  so  changed  since 
the  execution  of  an  instrument  containing  a  gift,  grant 
or  devise  to  religious,  educational,  charitable  or  benevo- 
lent uses  as  to  render  impracticable  or  impossible  a 
literal  compliance  with  the  terms  of  such  instrument, 
the  court  may,  upon  the  application  of  the  trustee  or 
of  the  person  or  corporation  having  the  custody  of  the 
property,  and  upon  such  notice  as  the  court  shall  direct, 
make  an  order  directing  that  such  gift,  grant  or  devise 
shall  be  administered  or  expended  in  such  manner  as 
in  the  judgment  of  the  court  will  most  effectually  ac- 
complish the  general  purpose  of  the  instrument,  without 
regard  to  and  free  from  any  specific  restriction,  limita- 
tion or  direction  contained  therein;  provided,  however, 
that  no  such  order  shall  be  made  without  the  consent  of 
the  donor  or  grantor  of  the  property,  if  he  be  living. 

"  3.  The  attorney-general  shall  represent  the  bene- 
ficiaries in  all  such  cases,  and  it  shall  be  his  duty  to  en- 
force such  trusts  by  proper  proceedings  in  the  courts."  * 

§  419.  By  these  statutes  the  Legislative  intended  to 


'See  also  Real  Prop.  L.,  §  114,  relating  to  "certain  educational  and 
other  charitable  uses  authorized,"  and  §  114  a,  cemetery  trusts,  etc.,  and 
§  115  "Certain  grants  for  charitable  uses  regulated."    For  similar  pro- 


§  419.]  SINCE  LAWS  1893,  CHAPTER  701.  283 

restore  the  law  of  charitable  trusts  as  declared  in 
Williams  V.  Williams,1  including  the  principles  of  the 
law  governing  the  administration  of  such  trusts.  Un- 
der the  provisions  of  the  acts,  a  donor  may  name  a  com- 
petent corporation  as  trustee;2  or  provide  thai  a  com- 
petent corporation  to  be  founded  shall,  when  formed, 
act  as  trustee;  or  the  trustee  named  may  be  an  indi- 
vidual; but  in  so  far  as  he  does  not  thus  make  adequate 
provision  for  the  vesting  of  title  in  trust,  the  statutes 
provide  in  effect  that  the  trust  shall  not  fail,  but  the 
title  to  the  property  given,  granted,  devised,  or  be- 
queathed in  trust  shall  vest  in  the  Supreme  Court.  In 
oider  that  there  should  be  a  "trustee  named,"  it  is  not 
now  necessary  that  the  instrument  should  state  in  ex- 
press terms  that  the  persons  named  should  take  as 
trustees,  but  it  is  enough  that  such  an  intent  be  clearly 
indicated.3  In  order  that  a  trust  under  the  present 
statutes  may  be  "  in  other  respects  valid,"  it  must  not 
violate  the  statute  concerning  accumulations;4  and  must 
not  be  so  indefinite  in  regard  to  what  its  purposes  are  as 


visions  as  to  personal  property,  see  Pers.  Prop.  L.,  §§  12,  13, 13a,  14.  Mr. 
Fowler  in  his  Real  Property  Law,  3rd  Ed.,  pp.  539,  564,  gives  the  text  of 
the  various  statutes  on  these  subjects,  beginning  with  that  of  1893.  These 
statutes  cannot  have  any  retroactive  effect,  to  change  rights  in  property 
which  had  already  vested;  People  v.  Powers,  147  N.  Y.  104,  109;  Murray 
v.  Miller,  178  N.  Y.  316.  But  in  other  respects  they  may  sometimes  have 
a  bearing  on  gifts  previously  provided  for.  Dammert  v.  Osborn,  140 
N.  Y.  30,  43. 

1 8  N.  Y.  525. 

'See  Matter  of  Griffin,  167  N.  Y.  71,  81. 

3  Rothschild  v.  Schiff,  188  N.  Y.  327,  331.  See  Manley  v.  Fiske,  139 
App.  Div.  665;  201  N.  Y.  546.  It  seems  that  the  present  cypres  statute 
applies  to  powers  in  trust  as  well  as  to  express  trusts.  Cullen,  J.,  in 
Kelly  v.  Hovey,  35  App.  Div.  273,  277;  Real  Prop.  L.,  §  182.  As  to 
its  effect  on  a  gift  in  trust  by  a  New  York  testator  to  a  foreign  unincor 
porated  college,  see  Catt  v.  Catt,  118  App.  Div.  742.  And  on  the  general 
subject  of  the  conflict  of  laws,  see  Chapter  XII. 

4St.  John  v.  Andrews  Institute,  191  N.  Y.  254,  277;  see  also  Smith  v. 
Chesebrough,  176  N.  Y.  317. 


284  GIFTS  FOR  CHARITY.  [CH.  VIII. 

to  result  in  invalidity  under  established  principles. 
Thus  the  statute  does  not  validate  indefinite  gifts  in 
trust  for  private  purposes,  and  accordingly  a  trust 
merely  for  "  educational  institutions,"  which  thus  does 
not  prescribe  that  they  must  be  of  a  public  character,  is 
invalid.1  But  the  requirement  of  the  statute  that  it  shall 
be  "  in  other  respects  valid,"  does  not  make  it  necessary 
to  restrict  a  trust  for  charity  within  the  "  statutory 
period  "  to  which  other  trusts  are  limited.  It  may  be 
perpetual.2  But  nevertheless,  the  words  quoted  from 
the  statute  have  a  relation  to  the  subject  of  suspension 
of  the  power  of  alienation,  in  that,  for  example,  a  gift 
for  charity  might  fail  on  account  of  its  intimate  con- 
nection, in  the  scheme  of  the  instrument,  with  other 
provisions  rendered  void  by  failure  to  comply  with  the 
statutes  relative  to  suspension.3  And  though  property 
may  be  given  in  perpetuity  for  charitable  purposes,  yet 
the  fact  that  an  ultimate  limitation  is  thus  for  charity 
does  not  validate  a  prior  non-charitable  trust  which 
would  otherwise  be  void  on  account  of  suspending  alien- 
ability for  a  period  not  duly  restricted.4 

§  420.  In  addition  to  the  trusts  now  rendered  valid 
by  the  statute,  the  established  theory  that  property  may 
be  granted,  devised  or  bequeathed  to  a  charitable  cor- 
poration for  its  own  corporate  purposes,  if  it  is  then  in 
existence  or  is  to  be  formed  within  two  designated 
"  lives  in  being  "  still  holds  good.  Such  a  gift  does  not 
constitute  a  trust  at  all.5 


'Matter  of  Shattuek,  193  N.  Y.  446;  compare  Bowman  v.  Domestic  & 
Foreign  M.  Soc,  100  App.  Div.  29,  modified  182  N.  Y.  494;  Kingsbury  v. 
Brandegee,  113  App.  Div.  606. 

2  Allen  v.  Stevens,  161  N.  Y.  122, 143-5;  Bowman  v.  Domestic  &  Foreign 
M.  Soc,  182  N.  Y.  494;  Matter  of  Griffin,  167  N.  Y.  71. 

3  Allen  v.  Stevens,  161  N.  Y.  122,  145. 

4  Robb  v.  Washington  &  Jefferson  College,  185  N.  Y.  485,  495. 

5  St.  John  v.  Andrews  Institute,  191  N.  Y.  254,  267;  Matter  of  Griffin, 
167  N.  Y.  71,  83;  Bird  v.  Merklee,   144  N.  Y.  544;  Johnston  v.  Hughes, 


§  420.]  SINCE  LAWS  1893,  CHAPTER  701.  285 

187  N.  Y.  446 ;  Boardman  v.  Hitchcock,  136  App.  Div.  253,  aff'd  202  N.  Y. 
(Mem  ). 

As  to  devises  or  bequests,  absolute  or  in  trust,  under  the  former  or 
the  present  law,  to  voluntary  unincorporated  associations,  see  Murray  v. 
Miller,  178  N.  Y.  316;  Fralick  v.  Lyford,  107  App  Div.  543,  aff'd  187 
N.  Y.  524;  Fairchild  v.  Edson,  154  N.  Y.  199;  Matter  of  Graves,  171  N.  Y. 
40,  47 ;  Mount  v.  Tuttle,  183  N.  Y.  358,  366-7 ;  Sherwood  v.  Am.  Bible 
Society,  4  Abb.  Ct.  App.  Dec.  227;  White  v.  Howard,  46  N.  Y.  144,  163. 

The  subject  of  provisions,  whether  by  way  of  charitable  use  or  other- 
wise, relating  to  tombs,  cemetery  lots,  etc.,  has  been  dealt  with  from  time 
to  time  in  very  numerous  statutes,  e.  g.  Couuty  L.,  §  152,  Religious  Cor- 
porations L.,  §  7;  Real  Prop.  L.  §  114,  subd.  3;  id.  §  114a;  Pers.  Prop.  L. 
§  13a;  Driscoll  v.  Hewlett,  198  N.  Y.  297;  Matter  of  Dewitt,  113  App. 
Div.  790,  aff'd  188  N.  Y.  567;  Read  v.  Williams,  125  N.  Y.  560;  Matter 
of  Murray,  34  Misc.  39;  Matter  of  Waldron,  57  Misc.  275;  Matter  of 
Schuler,  24  N.  Y.  Supp.  847;  Pfaler  v.  Raberg,  3  Dem.  360;  Matter  of 
Perkins,  68  Misc.  255.  Section  114a  of  the  Real  Property  Law  includes  a 
provision  that  gifts,  grants  and  devises  there  authorized  shall  not  "be 
deemed  invalid  as  violating  any  existing  laws  against  perpetuities  or  sus- 
pension of  the  power  of  alienation  of  title  to  property."  See  also,  on  this 
point,  Pers.  Prop,  L.  §  13a. 

Limitation  on  amount  of  devise  or  bequest,  in  certain  cases,  to  chari- 
table uses.  Decedent  Estate  L.,  §  17  (§§  18-20  repealed,  see  L.  1911,  Ch. 
857).  Wetmore  v.  Parker,  52  N.  Y.  450,  460;  Smith  v.  Havens  Relief 
Fund,  118  App.  Div.  678,  aff'd  190  N.  Y.  557;  Chamberlain  v.  Chamber- 
lain, 43  N.  Y.  424,  440;  Amherst  College  v.  Ritch,  151  N.  Y.  282,  331; 
Fairchild  v.  Edson,  154  N.  Y.  199;  Matter  of  Walker,  136  N.  Y.  20;  St. 
John  v.  Andrews  Institute,  191  N.  Y.  254,  272-6;  Robb  v.  Washington  <k 
Jefferson  College,  185  K  Y.  485,  491,  494;  Jones  v.  Kelly,  170  N.  Y.  401 ; 
Allen  v.  Stevens,  161  N.  Y.  122;  Matter  of  Durand,  194  N.  Y.  477.  4s*; 
Matter  of  Cooney,  112  App.  Div.  659,  115  App.  Div.  895,  aff'  d  187  N.  Y. 
546;  Moser  v.  Talman,  114  App.  Div.  850;  Farmers'  Loan  &  Trust  Co.  v. 
Shaw,  127  App.  Div.  656,  662;  Hollis  v.  Drew  Theo.  Seminary,  95  N.  Y. 
166,  177;  Harris  v.  Am.  Bible  Soc'y,  2  Abb.  Ct.App.  Dec.316,  323;  Mutter 
of  Strang,  121  App.  Div.  112;  Matter  of  Teed,  59  Hun,  63. 

When  such  gifts  were  void  if  made  within  two  montlis  before  death. 
Former  Decedent  Estate  Law,  §§18,  19,  now  repealed  by  L,  1911,  Ch. 
857;  Matterof  Lampson,  161  N.  Y.  511  ;  Fairchild  v.  Edson.  154 N.  Y.  199; 
Pearson  v.  Collins,  113  App.  Div.  657,  app.  dism'd  187  N.  Y.  530;  Marx  v. 
McGlynn,  88  N.  Y.  357,  376;  Stephenson  v.  Short,  92  N.  Y  433,  445; 
LeFevre  v.  LeFevre,  59  N.  Y.  434;  Kerr  v.  Dougherty,  79  N.  Y.  827; 
Beekman  v.  Peo.,  27  Barb.  260;  Hollis  v.  Drew  Theo.  Seminary,  95  N  Y. 
166,  170.  This  affects  only  the  corporations  chartered  under  the  Btatute 
containing  the  restriction,  or  those  whose  charters  refer  to  it  and  make  it- 
provisions  applicable.  Stephenson  v.  Short.  92  N.  Y.  433;  Kerr  v.  Dough- 
erty,  79  N.  Y.  327,  335,  339;  Lefevre  v.  Lefevre,  59  X.  Y.  484,  448,  and 
other  cases  last  above  cited;  Smith  v.  Havens  Relief  Fund,  118  App.  Div. 
678.  aff'd  190  K  Y.  557. 


CHAPTER  IX. 

EQUITABLE  CONVERSION. 

§  421.  As  already  stated,  there  are  certain  respects 
in  which  the  principles  concerning  alienability,  and 
vesting,  differ  in  form,  or  in  application,  according  as 
the  property  in  question  is  real  or  personal.  Some  of 
the  more  important  differences  are,  ( 1 )  that  in  the  case 
of  real  property  only,  the  "  statutory  period  "  of  two 
lives  is  subject,  in  certain  exceptional  cases,  to  a  further 
extension  for  one  minority;  (2)  that  there  are  only 
four  purposes  (or,  including  charities,  five  purposes) 
for  which  express  trusts  of  real  property,  some  of  which 
involve  suspension  of  alienability,  can  be  created ;  while 
in  the  case  of  personal  property,  express  trusts  may  be 
created  for  any  purpose  not  in  itself  unlawful;  (3)  in 
case  of  conflict  of  laws,  the  principles  applicable  to  real 
and  personal  property  differ  in  many  respects. 

§  422.  In  view  of  these  differences,  it  is  evident  that 
the  nature  of  the  property  concerning  which  a  question 
of  suspension,  or  postponement  of  vesting,  is  raised, 
may  be  of  great  importance. 

§  423.  In  determining  whether  a  given  scheme  of  dis- 
position does  deal  with  real  or  with  personal  property, 
the  mere  fact  of  the  actual  form  it  wears  at  the  creation 
of  the  estate  is  not  decisive.  Where  there  is  an  im- 
perative direction  to  convert  real  property  into  per- 
sonal, or  personal  into  real,1  here  equity,  on  the  princi- 
ple of  regarding  as  done  that  which  ought  to  be  done, 


1  Thorn  v.  Coles,  3  Edw.  Ch.  330. 

286 


§  424.]  EQUITABLE  CONVERSION.  287 

considers  the  conversion  as  effected  at  the  time  pro- 
vided for  or  contemplated  by  the  instrument,  even 
though  the  property  is  not  then  in  fact  converted.  This 
is  called  "  equitable  conversion," 1  and  the  rules  re- 
lating respectively  to  suspension  of  the  absolute  power 
of  alienation,  and  to  postponement  of  vesting,  as  affect- 
ing' real  property,  and  to  suspension  of  the  absolute 
ownership  of  personal  property,  are  applied  accord- 
ingly.2 

§  424.  Such  a  conversion  is  not  effected  by  a  mere 
discretionary  power  of  sale ; 3  but  in  order  to  occasion 
equitable  conversion,  the  direction  to  sell  need  not  be 
given  in  express  terms ;  it  may  be  raised  by  implication.4 


JDoane  v.  Mercantile  Trust  Co.,  160  N.  Y.  494;  Matter  of  Caldwell, 
188  N.  Y.  115;  Schlereth  v.  Schlereth,  173  N.  Y.  444,  449;  McDonald 
v.  O'Hara,  144  N.  Y.  566;  Hope  v.  Brewer,  136  N.  Y.  126,  134; 
Underwood  v.  Curtis,  127  N.  Y.  523;  Robert  v.  Corning,  89  N.  Y. 
225,  239;  Hatch  v.  Bassett,  52  N.  Y.  359;  Cottman  v.  Grace,  112 
N.  Y.  299,  305;  Hood  v.  Hood,  85  N.  Y.  561,  570;  Asche  v.  Asche,  113 
N.  Y.  232;  Fisher  v.  Banta,  66  N.  Y.  468;  Moncrief  v.  Ross,  50  N.  Y. 
431;  Greenland  v.  Waddell,  116  N.  Y.  234;  Savage  v.  Burnham,  17 
N.  Y.  561,  569;  Vincent  v.  Newhouse,  83  N.  Y.  511;  see  Coann  v. 
Culver,  188  N.   Y.   9,   15. 

2  Kane  v.  Gott,  24  Wend.  641,  659;  Everitt  v.  Everitt,  29  N.  Y.  39, 
71;  Wells  v.  Wells,  88  N.  Y.  323,  331;  Greenland  v.  Waddell,  116 
N.  Y.  234;  Savage  v.  Burnham,  17  N.  Y.  561,  569;  Ogsbury  v. 
Ogsbury,  115  N.  Y.  290;  Hope  v.  Brewer,  136  N.  Y.  126,  134;  Under- 
wood v.  Curtis,  127  N.  Y.  523,  535;  Matter  of  Wilcox,  194  N.  Y.  288. 

3  Coann  v.  Culver,  188  N.  Y.  9,  13,  15;  Matter  of  Tatum,  169  N.  Y. 
514,  518;  Matter  of  Tienken,  131  N.  Y.  391,  408;  Matter  of  Coolidge, 
85  App.  Div.  295,  aff'd  177  N.  Y.  541;  Matter  of  Bingham,  127  N.  Y. 
426;  Wells  v.  Brooklyn  Union  Elevated  Railroad  Co.,  121  App.  Div. 
491,  aff'd  193  N.  Y.  641;  Clift  v.  Moses,  116  N.  Y.  144,  158;  Matter 
of  McComb,  117  N.  Y.  378;  Miller  v.  Wright,  109  N.  Y.  194;  Read  v. 
Williams,  125  N.  Y.  560;  Lee  v.  Tower,  124  N.  Y.  370,  26  N.  E.  Rep. 
943;  White  v.  Howard,  46  N.  Y.  144,  166-7;  Van  Vechten  v.  Keator, 
63  N.  Y.  52;   Harris  v.  Clark,  7  N.  Y.  242. 

4  Matter  of  Russell,  168  N.  Y.  169,  172;  Salisbury  v.  Slade,  160  N.  Y. 
278;  Sweeney  v.  Warren,  127  N.  Y.  426,  432;  Asche  v.  Asche.  113  N. 
Y.  232,  235;  Power  v.  Cassidy,  79  N.  Y.  602;  Lent  v.  Howard.  89  N. 
Y.  16;  Tillman  v.  Davis,  95  N.  Y.  17,  23;  see  Hobson  v.  Hale,  95  N.  V 


288  EQUITABLE  CONVERSION.  [CH.  IX. 

And  a  permission  to  the  trustee  to  fix  the  particular 
time  of  sale,  or  to  delay  the  sale  beyond  the  time  desig- 
nated, does  not  necessarily  prevent  an  equitable  conver- 
sion.1 Where  a  conversion  is  directed  for  a  particular 
purpose,  and  that  purpose  fails,  the  property  retains 
its  original  character.2  And  under  certain  circum- 
stances, considered  in  another  place,  the  exercise  of 
"  election "  to  take  the  property  in  its  unconverted 
form,  may  effect  a  "  reconversion."  3 

§  425.  As  distinguished  from  the  class  of  cases  where 
the  validity  of  given  provisions  turns  on  the  nature  of 
the  property  affected,  and  thus  may  depend  on  the  ap- 


588;  Gourley  v.  Campbell,  66  N.  Y.  169,  172;  Fraser  v.  Trustees,  124 
N.  Y.  479;  Miller  v.  Wright,  109  N.  Y.  194,  199;  Chamberlain  v. 
Taylor,  105  N.  Y.  185,  194;  Clift  v.  Moses,  116  N.  Y.  144,  157  et  seq.  ; 
Scholle  v.  Scholle,  113  N.  Y.  261,  271;  Phelps'  Ex'r.  v.  Pond,  23  N.  Y. 
69;  Delafield  v.  Barlow,  107  N.  Y.  535. 

1  Underwood  v.  Curtis,  127  N.  Y.  523,  535;  Fraser  v.  Trustees,  124 
N.  Y.  479,  484;  Salisbury  v.  Slade,  160  N.  Y.  278,  289;  March  v. 
March,  186  N.  Y.  99,  104;  Robert  v.  Corning,  89  N.  Y.  225,  239; 
Greenland  v.  Waddell,  116  N.  Y.  234;  Fisher  v.  Banta,  66  N.  Y.  468; 
Lent  v.  Howard,  89  N.  Y.  169,  177;  Matter  of  McGraw,  111  N.  Y. 
66,  113;  Stagg  v.  Jackson,  1  N.  Y.  206,  212. 

1  Jones  v.  Kelly,  170  N.  Y.  401;  Trask  v.  Sturges,  170  N.  Y.  482,  489; 
Sweeney  v.  Warren,  127  N.  Y.  426,  431;  Matter  of  Tienken,  131  N.  Y. 
391,  408;  Gourley  v.  Campbell,  66  N.  Y.  169,  174;  Chamberlain  v. 
Taylor,  105  N.  Y.  185,  194;  Parker  v.  Linden,  113  N.  Y.  28;  Fisher 
v.  Banta,  66  N.  Y.  468,  477;  Bogert  v.  Hertell,  4  Hill,  492.  See  Green- 
land v.  Waddell,  116  N.  Y.  234,  245;  Wright  v.  Trustees,  Hoffman  Ch. 
202;  Hobson  v.  Hale,  95  N.  Y.  588,  606.  As  to  the  application  of  the 
doctrine  of  conversion  to  a  surplus  of  the  proceeds  of  sale  not  needed 
for  the  purpose  for  which  sale  was  directed,  see  Downing  v. 
Marshall,  1  Abb.  Ct.  App.  Dec.  524,  543;  Van  Vechten  v.  Keator,  63 
N.  Y.  52;  Erwin  v.  Loper,  43  N.  Y.  521;  Parker  v.  Linden,  113  N.  Y. 
28.  Effect  of  a  direction  to  sell,  as  against  an  afterborn  child, 
Smith  v.  Robertson,  89  N.  Y.  555. 

3Hetzel  v.  Barber,  69  N.  Y.  1,  12;  Greenland  v.  Waddell,  116  N.  Y. 
234,  246;  Armstrong  v.  McKelvey,  104  N.  Y.  179,  183-4;  Prentice  v. 
Janssen,  79  N.  Y.  478,  484,  et  seq.;  Parker  v.  Linden,  113  N.  Y.  28,  38; 
Trask  v.  Sturges,  170  N.  Y.  482;  compare  McDonald  v.  O'Hara,  144 
N.  Y.  566. 


§  425.]  EQUITABLE  CONVERSION.  289 

plicability  of  the  doctrine  of  equitable  conversion ;  there 
is  another  class  of  cases  where,  so  far  as  concerns  the 
question  of  validity,  it  is  quite  immaterial  whether  the 
property  is  viewed  as  equitably  converted,  or  not.  Such 
are  all  cases  where  the  Rules  in  relation  to  alienability, 
and  vesting,  are  the  same,  as  applied  both  to  real  and  to 
personal  property.  As  the  Rules  are  the  same,  the  prop- 
erty subjected  to  them  in  its  unconverted  form,  is  nec- 
essarily likewise  subject,  even  though  equitably  con- 
verted. Illustrations  of  this  class  may  be  found  in  the 
cases  discussed  in  Chapter  II,  where  even  an  imperative 
power  to  sell  does  not  obviate  an  unlawful  suspension 
otherwise  existing,  if  the  proceeds  of  the  sale  are  still 
subject  to  an  unlawful  suspension  of  absolute  owner- 
ship. 


CHAPTER  X. 

SEPARABILITY. 

General  Principles. 
Alternative  Future  Dispositions. 

Simple  Alternative  Contingencies. 

Involved  Alternative  Contingencies. 

Contingencies  with  an  Alternative  Application. 

General  Principles. 

§  426.  Where  an  instrument  contains  dispositions 
some  of  which  are  void  for  undue  suspension,  or  post- 
ponement of  vesting,  it  does  not  necessarily  follow  that 
all  parts  of  the  scheme  are  thereby  destroyed.  For  a 
distinction  is  to  be  observed  between  schemes  which 
were  obviously  intended  to  constitute  a  single  entity 
and  must  stand  or  fall  on  their  merits  as  one  whole, 
and  those  which  may  be  separated  into  wholly  inde- 
pendent dispositions.  If  a  provision  of  the  former 
character  involves  an  unlawful  suspension  or  postpone- 
ment, the  whole  scheme  falls  to  the  ground,1  while  if 


1  Central  Trust  Co.  v.  Egleston,  185  N.  Y.  23,  34;  Schlereth  v. 
Schlereth,  173  N.  Y.  444;  Hafner  v.  Hafner,  62  App.  Div.  316,  aff'd 
171  N.  Y.  633;  Herzog  v.  Title  Guarantee  &  Trust  Co.,  177  N.  Y. 
86;  Matter  of  Will  of  Butterfield,  133  N.  Y.  473,  476;  Martin  v.  Pine, 
79  Hun,  426,  430;  Matter  of  Dewitt,  113  App.  Div.  790,  aff'd  188  N.  Y. 
567;  Brown  v.  Quintard,  177  N.  Y.  75,  85;  Simpson  v.  Trust  Co.  of 
America,  129  App.  Div.  200,  aff'd  197  N.  Y.  586;  Matter  of  Stevens, 
161  N.  Y.  122,  145;  Amory  v.  Lord,  9  N.  Y.  403,  413-18-19;  Levy  v. 
Levy,  33  N.  Y.  97  (which  compare  with  Adams  v.  Perry,  43  N.  Y. 
487);  Haynes  v.  Sherman,  117  N.  Y.  433;  Knox  v.  Jones,  47  N.  Y. 
389,  398  et  seq.;  Harris  v.  Clark,  7  N.  Y.  242;  Dana  v.  Murray,  122 
N.  Y.  604;  Holmes  v.  Mead,  52  N.  Y.  332,  344;  Woodruff  v.  Cook,  61 

290 


§  426.]  GENERAL  PRINCIPLES.  291 

the  taint  of  illegality  attaches  only  to  a  wholly  inde- 
pendent part  of  an  entire  scheme,  this  tainted  part  may 
be  cut  off,  and  the  rest  allowed  to  stand.1 

N.  Y.  638,  641,  et  seq.;  Jennings  v.  Jennings,  7  N.  Y.  547;  Clemens 
v.  Clemens,  60  Barb.  366,  affd  37  N.  Y.  59;  Tilden  v.  Greene,  130  N. 
Y.  29,  50;  Colton  v.  Fox,  67  N.  Y.  348,  352;  Rice  v.  Barrett,  102  N.  Y. 
161;  Field  v.  Field's  Exr's,  4  Sandf.  Ch.  528,  551;  Walter  v.  Walter, 
60  Misc.  383,  affd  133  App.  Div.  893,  affd  197  N.  Y.  606;  Dresser  v. 
Travis,  39  Misc.  358,  363,  affd  87  App.  Div.  632. 

1  Underwood  v.  Curtis,  127  N.  Y.  523,  542;  Brown  v.  Richter,  76 
Hun,  469,  affd  144  N.  Y.  706;  Smith  v.  Chesebrough,  176  N.  Y.  317; 
Trunkey  v.  Van  Sant,  176  N.  Y.  535;  Kalish  v.  Kalish,  166  N.  Y.  368; 
Haug  v.  Schumacher,  166  N.  Y.  506;  Hascall  v.  King,  162  N.  Y.  134, 
152-3;  Chastain  v.  Dickinson,  201  N.  Y.  538;  Maitland  v.  Bald- 
win, 70  Hun,  267;  Martin  v.  Pine,  79  Hun  426;  Matter  of  Mount,  185 
N.  Y.  162;  Culross  v.  Gibbons,  130  N.  Y.  447,  452;  Schey  v.  Schey,  194 
N.  Y.  368;  Matter  of  Wilcox,  194  N.  Y.  288,  293;  Morton  Trust  Co.  v. 
Sands,  195  N.  Y.  28;  Matter  of  Jenkins,  132  App.  Div.  339;  Matter  of 
Harteau,  125  App.  Div.  710,  714,  app.  dism'd.  196  N.  Y.  513;  Cochrane 
v.  Schell,  140  N.  Y.  516,  536;  Kennedy  v.  Hoy,  105  N.  Y.  134;  Kil- 
patrick  v.  Johnson,  15  N.  Y.  322;  Smith  v.  Edwards,  88  N.  Y.  92,  104; 
Manice  v.  Manice,  43  N.  Y.  303,  383;  Harrison  v.  Harrison,  36  N.  Y. 
543;  Tiers  v.  Tiers,  98  N.  Y.  568,  573;  Savage  v.  Burnham,  17  N.  Y. 
561,  572;  Van  Schuyver  v.  Mulford,  59  N.  Y.  426;  Henderson  v. 
Henderson,  113  N.  Y.  1,  15;  Adams  v.  Perry,  43  N.  Y.  487,  500  et  seq. 
(which  compare  with  Levy  v.  Levy,  33  N.  Y.  97) ;  Woodgate  v.  Fleet, 
64  N.  Y.  566,  573;  Barker  v.  Crosby,  32  Barb.  184;  Oxley  v.  Lane,  35 
N.  Y.  340,  349,  et  seq.;  DePeyster  v.  Clendining,  8  Pai.  295,  26  Wend. 
21;  Purdy  v.  Hayt,  92  N.  Y.  446,  458;  Schettler  v.  Smith,  41  N.  Y.  328, 
335,  et  seq.;  Grout  v.  Van  Schoonhoven,  1  Sandf.  Ch.  326,  340; 
Matter  of  Herrick,  32  N.  Y.  State  Rep.  1032,  1036.  The  following 
cases  may  also  be  consulted:  Darling  v.  Rogers,  22  Wend.  483; 
Arnold  v.  Gilbert,  5  Barb.  190;  Duprg  v.  Thompson,  4  Barb.  279,  2S4; 
Shipman  v.  Rollins,  98  N.  Y.  311,  330;  Knox  v.  Jones,  47  N.  Y.  389; 
James  v.  Beasley,  14  Hun,  520;  Williams  v.  Conrad,  30  Barb.,  524; 
Killam  v.  Allen,  52  Barb.  605;  Bean  v.  Bowen,  47  How.  Pr.  30C,  328; 
Garland  v.  Garland,  35  Misc.  147;  Matter  of  Buchner,  60  Misc.  2S7. 
The  cases  of  Coster  v.  Lorillard,  14  Wend.  265;  Hawley  v.  James,  16 
Wend.  61,  and  Root  v.  Stuyvesant,  18  Wend.  257;  are  said  in  Kane 
v.  Gott,  24  Wend.  641,  666,  not  to  hold  a  contrary  doctrine,  though 
in  them  the  rule  was  not  liberally  applied.  See  opinion  of  Cowen, 
J.,  in  Darling  v.  Rogers,  22  Wend.  483.  Such  also  appears  to  be  the 
case  in  Matter  of  Bruchaeser,  49  Misc.  194.  It  seems  to  be  siu 
in  Van  Vechten  v.  Van  Veghten,  8  Pai.  104,  128;  Smith  v.  Edwards, 
88  N.  Y.  92,  104,  that  the  nature  of  personal  property  is  such  as  to 


292  SEPARABILITY.  [CH.  X. 

§  427.  The  fact  that  valid  and  void  limitations  are 
both  embraced  within  the  terms  of  a  single  trust,  does 
not  constitute  any  insuperable  obstacle  in  the  way  of 
sustaining  the  former  while  cutting  off  the  latter.1 

§  428.  And  where  an  estate  is  vested  in  a  trustee 
upon  several  independent  and  separable  trusts,  some  of 
which  are  legal,  while  others  are  in  contravention  of  the 
statute  concerning  suspension,  the  estate  of  the  trustee 
may,  in  accordance  with  the  principles  above  stated,  be 


render  various  dispositions  more  readily  severable  than  in  the  case 
of  real  property.     See  Holmes  v.  Mead,  52  N.  Y.  332,  338. 

It  is  possible  that  events  occurring  when  or  after  the  instrument 
goes  into  effect  may,  by  rendering  it  ineffectual  in  part,  have  a 
bearing  upon  the  feasibility  of  supporting  provisions  not  directly 
affected.  Brown  v.  Quintard,  177  N.  Y.  75,  84-5;  but  see  Van  Buren 
v.  Dash,  30  N.  Y.  393,  426.  For  the  possible  bearing  of  an  election 
by  a  widow  to  take  her  dower  rights  rather  than  interests  under  a 
testamentary  trust  created  by  her  husband's  will  in  lieu  of  dower, 
as  affecting  the  status  of  the  entire  trust  scheme,  see  generally, 
Savage  v.  Burnham,  17  N.  Y.  561;  Tobias  v.  Ketchum,  32  N.  Y.  319, 
327  (see  Konvalinka  v.  Schlegel,  104  N.  Y.  125,  130);  Matter  of 
Frazer,  92  N.  Y.  250;  People's  Trust  Co.  v.  Flynn,  113  App.  Div.  683, 
684,  reversed  188  N.  Y.  385;  Buchanan  v.  Little,  154  N.  Y.  147; 
Matter  of  Gorden,  172  N.  Y.  25;  Horstmann  v.  Flege,  172  N.  Y.  381; 
Matter  of  Zahrt,  94  N.  Y.  605;  Hooker  v.  Hooker,  41  App. 
Div.  235,  166  N.  Y.  156;  Gilman  v.  Gilman,  111  N.  Y.  265;  Bailey  v. 
Bailey,  97  N.  Y.  460,  471;  Asche  v.  Asche,  113  N.  Y.  232;  Akin  v. 
Kellogg,  119  N.  Y.  441;  Wilson  v.  Wilson,  120  App.  Div.  581;  Lee  v. 
Tower,  124  N.  Y.  370;  Kirchner  v.  Kirchner,  71  Misc.  57.  Effect  of 
birth  of  child  after  execution  of  will,  Decedent  Estate  Law,  §§  26,  35; 
Herriot  v.  Prime,  155  N.  Y.  5;  Tavshanjian  v.  Abbott,  200  N.  Y.  374. 
And  where  the  invalidating  of  certain  trusts  and  the  sustaining  of 
certain  wholly  independent  devises,  would  be  to  give  the  devises 
(being  also  heirs)  an  undue  and  unintended  share,  and  they  must 
elect  whether  to  take  under  the  will  or  in  hostility  to  it,  Persons  v. 
Snook,  40  Barb.  144,  157,  their  election  might  lead  to  the  same 
result. 

1  Harrison  v.  Harrison,  36  N.  Y.  543;  Manice  v.  Manice,  43  N.  Y. 
303,  363,  383;  Savage  v.  Burnham,  17  N.  Y.  561,  576;  Post  v.  Hover, 
33  N.  Y.  593;  Darling  v.  Rogers  (opinion  of  Cowen  J.),  22  Wend. 
483;  Dupre  v.  Thompson,  4  Barb.  279,  284,  aff'd.  8  Barb.  538;  Bolton 
v.  Jacks,  6  Robt.  166;  Kalish  v.  Kalish,  166  N.  Y.  368,  376. 


§  429.]  GENERAL  PRINCIPLES.  293 

upheld  to  the  extent  necessary  to  enable  him  to  execute 
the  valid  trusts.1 

§  429.  But  even  where  among  several  provisions  some 
are  in  themselves  valid,  and  others  are  invalid,  the  whole 
scheme  may  be  vitiated  even  although  the  illegal  pro- 
visions are  distinct  and  easily  separable  from  the 
others.  This  would  be  the  case  where  the  result  of  dis- 
carding the  invalid  and  sustaining  the  valid  would  be 
to  seriously  interfere  with  the  obvious  general  intention 
of  the  testator  or  grantor  as  applied  to  the  main  fea- 
tures of  his  plan.2  For  where  the  main  elements  of  a 
general  scheme  fail,  through  invalidity,  the  subsidiary 
and  dependent  elements,  even  though  per  se  valid,  fail 
too.3 


1Van  Schuyver  v.  Mulford,  59  N.  Y.  426,  432;  Adams  v.  Perry,  43 
N.  Y.  487,  500;  Savage  v.  Burnham,  17  N.  Y.  561,  570  et  seq.: 
Woodgate  v.  Fleet,  44  N.  Y.  1 ;  Brown  v.  Richter,  76  Hun,  469,  aff'd 
144  N.  Y.  706.     See  also  cases  cited  in  preceding  note. 

The  statutory  provision  Real  Prop.  L.,  §  99,  that  "  where  an  ex- 
press trust  relating  to  real  property  is  created  for  any  purpose  not 
specified  in  the  preceding  sections  of  this  article,  no  estate  shall 
vest  in  the  trustees,"  does  not  mean  that  if  a  separable  portion  of 
the  trust  is  invalid  no  estate  shall  vest  in  the  trustees  as  to  the 
other  portions.  Greene  v.  Greene,  125  N.  Y.  506;  Underwood  v. 
Curtis,  127  N.  Y.  523;   Kalish  v.  Kalish,  166  N.  Y.  368,  376. 

For  the  effect,  on  the  general  scheme,  of  a  provision  for  a  future 
trust,  invalid  for  undue  suspension  of  the  power  of  alienation  and 
limited  to  take  effect  only  upon  a  contingency  which  in  fact  did 
not  occur,  see  Morton  Trust  Co.  v.  Sands,  195  N.  Y.  28. 

2  Benedict  v.  Webb,  98  N.  Y.  460,  466;  Holmes  v.  Mead,  52  N.  Y. 
332,  344  et  seq.;  Clemens  v.  Clemens,  60  Barb.  366,  aff'd  37  N.  Y.  59; 
Chipman  v.  Montgomery,  63  N.  Y.  221,  234. 

8  Walsh  v.  Waldron,  63  Hun,  315,  aff'd.  135  N.  Y.  650;  Holmes  v. 
Mead,  52  N.  Y.  332,  344;  Cowen  v.  Rinaldo,  82  Hun,  479;  I.aFarge  v. 
Brown,  31  App.  Div.  542;  Harris  v.  Clark,  7  N.  Y.  242;  Allen  v. 
Stevens,  161    N.  Y.  122,  145.     See  Tilden  v.  Green,  130  N.  Y.  29,  B0. 

In  order  to  guard  against  the  possible  effect  of  invalidity  of 
certain  portions,  or  features,  of  a  will,  the  testator  may  validly 
provide  rules  to  be  followed  in  that  event.  Onderdonk  v.  Onderdonk, 
127  N.  Y.  196;  McComb  v.  Title  Guarantee  &  Trust  Co.,  36  Misc. 
370,  aff'd  70  App.  Div.  618. 


294  SEPARABILITY.  [CH.  X. 

Alternative  Future  Dispositions. 

§  430.  Where  the  instrument  provides  for  a  future 
disposition  of  property,  by  making  alternative  limita- 
tions, one  or  the  other  of  which  is  to  take  effect  accord- 
ing to  the  happening  of  specified  alternative  contin- 
gencies, the  mere  fact  that  the  limitation  over  upon  one 
contingency  is  invalid  because  it  might  involve  undue 
suspension,  or  postponement  of  vesting,  does  not  invali- 
date the  other  limitation  which,  if  the  contingency  upon 
which  it  would  become  operative  should  occur,  could 
not  possibly  occasion  such  undue  suspension  or  post- 
ponement. Illustrations  of  various  schemes  of  alter- 
native dispositions  are  given  in  the  following  sections. 

§  431.  It  is  to  be  noticed  that  such  schemes  may 
suggest  at  first  sight,  an  apparent  exception  or  qualifi- 
cation to  the  rule  already  stated,  that  the  absence  of 
undue  suspension  must  not  be  made  to  depend  on  sub- 
sequent events;  for  in  the  cases  under  consideration 
the  going  into  effect  of  such  one  of  the  alternative 
estates  as  is  in  itself  valid,  is  dependent  upon  the  hap- 
pening of  certain  future  events.  The  validity  of  such 
dispositions  does  not,  however,  in  reality  rest  upon  an 
exception  to  the  general  rule,  as  clearly  appears  from 
the  following  statement  of  the  rule  itself,  to  be  found 
in  the  opinion  in  Foioler  v.  Depau.1  "  The  rule  is,  that 
if  on  a  particular  contingency  the  power  of  alienation 
is  so  suspended  that  it  may  possibly  exceed  the  limits 
prescribed  by  law,  the  estate  granted  on  that  particular 
contingency  is  void ;  but  this  defect,  which  would  affect 
the  estate  only  if  that  contingency  had  occurred,  can 
have  no  effect  on  it  if  that  contingency  does  not  occur ; 
then  that  unlawful  estate  is  not  attempted.  Accord- 
ingly, the  good  alternative  estate  is  sustained,  notwith- 

*26  Barb.  224. 


§  432.]         ALTERNATIVE  FUTURE  DISPOSITIONS.  295 

standing  the  defect  which  would  have  been  in  the  other, 
if  the  course  of  events  had  created  it." 

§  432.  In  the  one  class  of  cases,  the  uncertainty 
affects  the  particular  estate  in  question,  which  mighl 
involve  undue  suspension  or  postponement  as  the  facts 
turn  out,  and  is  therefore  invalid;  in  the  other  class  of 
cases,  the  uncertainty  is  merely  whether,  as  among  two 
or  more  alternative  dispositions,  that  one  which  could 
not  possibly  effect  an  illegal  result,  or  that  one  which 
might  do  so,  will  be  the  one  which  the  future  events 
will  bring  into  operation  under  the  terms  of  the  instru- 
ment, and  this  uncertainty  does  not  in  itself  operate  to 
invalidate  the  one  which  could  not  involve  illegal  re- 
sults if  it  should  thus  become  operative.  "  Bnt  for  the 
prohibition  of  the  statute,  both  dispositions  would  have 
been  lawful  and  valid,  and  either  would  have  taken 
effect  according  to  the  happening  of  the  events  giving 
it  vitality.  The  statute  comes  in  and  avoids  one  of  the 
dispositions,  leaving  the  other  unaffected  by  its  provi- 
sions. Why  should  not  the  latter  take  effect  upon  the 
occurrence  of  the  events  upon  which  it  was  made  to 
depend?  The  authorities  sustain  its  validity."  1  And  in 
such  cases  also,  if  the  disposition  of  the  precedent  estate 
is  so  far  separable  as  to  be  valid  in  any  event,  irrespec- 
tive of  which  contingency  may  occur  in  future,  then  it 
may  be  sustained,  and  the  determination  of  the  validity 
of  the  future  dispositions  may  be  deferred,  within  the 
limits  of  the  statutory  period,  until  the  events  occur 
upon  which  the  decision  as  to  them  must  be  based.2 


*Schettler  v.  Smith,  41  N.  Y.  328. 

2  Matter  of  Mount,  185  N.  Y.  162;  Matter  of  Hoffman,  201  N.  Y. 
247,  254;  McComb  v.  Title  Guarantee  &  Trust  Co.,  36  Misc.  370, 
aff'd  70  App.  Div.  618;  Mendel  v.  Levis,  40  Misc.  271;  Tompkins  v. 
Verplanck,  10  App.  Div.  572;  Young  v.  Barker,  111  App  Dlv.  801, 
807;  Clark  v.  Goodridge,  51  Misc.  140;  Matter  of  Buchner,  60  Misc. 
287,  290.     The  term  "  contingencies  with  a  double  aspect,"  has  long 


296  SEPARABILITY.  [CH.  X. 

1.  Simple  Alternative  Contingencies. 

§  433.  Here  the  testator  or  grantor  designates  two 
or  more  alternative  states  of  fact,  one  or  the  other  of 
which  may  exist  at  some  specified  future  time  or  on  the 
happening  of  some  future  event,  and  then  specifically 
provides  an  alternative  future  disposition  of  property 
for  each  respective  state  of  facts.  This  method  of  dis- 
position is  covered,  in  one  aspect,  in  so  far  as  concerns 
alternative  future  estates,  by  the  Real  Property  Law 
which  provides  that  two  or  more  future  estates  may  be 
created,  to  take  effect  in  the  alternative,  so  that  if  the 
first  in  order  shall  fail  to  vest,  the  next  in  succession 
shall  be  substituted  for  it,  and  take  effect  accordingly.1 
In  such  schemes  of  disposition,  if  one  of  the  limitations, 
when  considered  by  itself,  is  unobjectionable,  it  may 
be  sustained,  to  go  into  effect  if  the  appropriate  event 
shall  occur,  even  though  the  alternative  limitation, 
based  upon  the  happening  of  some  different  event,  must 
be  suppressed  because  it  might  operate  to  cause  an 
undue  suspension  or  postponement.2 

2.  Involved  Alternative   Contingencies. 

§  434.  The  peculiar  characteristics  of  the  cases  classi- 
fied under  this  head  may  best  be  shown  by  illustrations. 
But  a  general  description  of  the  class  may  be  given  as 
follows : 


been  employed,  apparently  with  some  variation  in  the  scope  of  its 
meaning,  to  represent  some,  or  all,  of  the  classes  of  cases  considered 
in  the  following  sections.  Lewis,  Perpetuities,  Chapter  XXI;  Notes 
of  the  original  N.  Y.  Revisers;   Humphreys  on  Real  Property,  286. 

1  Real  Prop.  L.,  §  51.  Wilson  v.  White,  109  N.  Y.  59,  61. 

2Kiah  v.  Grenier,  56  N.  Y.  220,  225  (1  T.  &  C.  388,  which  see); 
DeKay  v.  Irving,  5  Den.  646,  654;  Schettler  v.  Smith,  41  N.  Y.  328; 
see  Kelso  v.  Lorillard,  85  N.  Y.  177,  182;  Genet  v.  Hunt,  113  N.  Y. 
158;  Marsden,  Perpetuities,  74;  Matter  of  Wilcox,  194  N.  Y.  288, 
294;  Matter  of  Murray,  75  App.  Div.  246.  For  a  valuable  discussion 
of  alternative  contingencies,  see  Fowler  v.  Depau,  26  Barb.  224. 


§  437.]         ALTERNATIVE  FUTURE  DISPOSITIONS.  297 

§  435.  Where  the  contingency,  upon  the  happening 
of  which  a  future  estate  or  interest  is  to  become  alien- 
able, or  vested,  may  turn  out  to  be  too  remote  under 
the  rules  concerning  suspension  or  postponement,  the 
future  disposition  is  invalid.  But  in  such  cases  it 
sometimes  happens,  from  the  nature  of  the  particular 
circumstances,  that  there  is  another  contingency  which, 
if  it  happens  at  all,  must  happen  within  the  statutory 
period,  and  must  involve  the  simultaneous  happening 
of  the  specified  contingency.  Sometimes  the  grantor  or 
testator  provides  for  this  state  of  things  in  terms,  and 
after  directing  that  the  future  disposition  shall  take 
effect  on  the  happening  of  the  too  remote  contingency, 
goes  on  to  provide  that  it  shall  also  take  effect  in  case 
of  the  happening  of  the  other  event  which,  if  it  happens 
at  all,  must  happen  in  due  time  and  must  involve  the 
simultaneous  happening  of  that  first  specified.1 

§  436.  If  the  grantor  or  testator  specifically  makes 
these  separate  provisions,  then  there  is  no  difficulty  in 
allowing  the  gift  to  take  effect  in  case  of  the  happening 
of  the  event  not  too  remote;  although  it  could  not  li<- 
allowed  to  take  effect  otherwise,  whenever  the  specified 
and  possibly  too  remote  event  might  happen.  But 
where  such  a  state  of  things  exists  and  he  docs  not 
make  any  specific  provision  for  the  valid  contingency, 
the  court  will  not  "  split  the  gift  "  for  him,  that  is,  they 
will  not  sustain  the  future  limitation  even  in  case  of 
the  happening  of  the  valid  but  not  specifically  men- 
tioned contingency.1 

§  437.  This  class  of  cases  is  illustrated,  and  the  prin- 
ciples upon  which  the  English  courts  rely  in   passing 


1Marsden,  Perpetuities,  73. 


298  SEPARABILITY.  [CH.  X. 

upon  them,  are  clearly  stated  by  Jessel,  M.  R.,  in  Miles 
V.  Harford,1  as  follows : 

"  As  I  understand  the  rule  of  law,  it  is  a  question 
of  expression.  If  you  have  an  expression  giving  over 
an  estate  on  one  event,  and  that  event  will  include  an- 
other event  which  itself  would  be  within  the  limit  of 
perpetuities,  or,  as  I  say,  the  Rule  against  Perpetuities, 
you  cannot  split  the  expression  so  as  to  say  if  the  event 
occurs,  which  is  within  the  limit,  the  estate  is  to  go 
over,  although,  if  the  event  does  not  occur,  the  gift  over 
iS  void  for  remoteness.  In  other  words,  you  are  bound 
to  take  the  expression  as  you  find  it,  and  if,  giving  the 
proper  interpretation  to  the  expression,  the  event  may 
transgress  the  limit,  then  the  gift  over  is  void. 

"  What  I  have  said  is  hardly  intelligible  without  an 
illustration :  On  a  gift  to  A  for  life,  with  a  gift  over 
in  case  he  shall  have  no  son  who  shall  attain  the  age  of 
twenty-five  years,  the  gift  over  is  void  for  remoteness. 
On  a  gift  to  A  for  life,  with  a  gift  over  if  he  shall  have  no 
son  who  shall  take  priest's  orders  in  the  Church  of  Eng- 
land, the  gift  over  is  void  for  remoteness;  but  a  gift 
superadded,  '  or  if  he  shall  have  no  son,'  is  valid,  and 
takes  effect  if  he  has  no  son,  yet  both  these  events  are  in- 
cluded in  the  other  event,  because  a  man  who  has  no  son 
certainly  never  has  a  son  who  attains  twenty-five  or 
takes  priest's  orders  in  the  Church  of  England,  still  the 
alternative  event  will  take  effect,  because  that  is  the 
expression. 

"  The  testator,  in  addition  to  his  expression  of  a  gift 
over,  has  also  expressed  another  gift  over,  on  another 
event,  although  included  in  the  first  event,  but  the  same 
judges  who  have  held  that  the  second  gift  over  will  take 
effect  where  it  is  expressed  have  held  that  it  will  not 


1 12  Ch.  D.  691,  702-5,  as  quoted  by  Professor  Gray. 


§  437.]  ALTERNATIVE  FUTURE  DISPOSITIONS.  299 

take  effect  if  it  is  not  expressed,  that  is,  if  it  is  really  a 
gift  over  on  the  death  before  attaining  twenty-five,  or 
taking  priest's  orders,  although,  of  course,  it  must  in- 
clude the  case  of  there  being  no  son.  That  is  what  they 
mean  by  splitting,  they  will  not  split  the  expression  by 
dividing  the  two  events,  but  when  they  find  two  expres- 
sions, they  give  effect  to  both  of  them,  as  if  you  had 
struck  the  other  out  of  the  will.  That  shows  it  is  really 
a  question  of  words  and  not  an  ascertainment  of  a 
general  intent,  because  there  is  no  doubt  that  the  man 
who  says  that  the  estate  is  to  go  over  if  A  has  no  son 
who  attains  twenty-five,  means  it  to  go  over  if  he  has 
no  son  at  all,  it  is,  as  I  said  before,  because  he  has  not 
expressed  the  events  separately,  and  for  no  other  reason. 
That  is  my  view  of  the  authorities.  This  is  a  question 
of  authorities. 

"  Now  we  come  to  the  case  we  have  before  us.  The 
estate  is  to  go  over  if  any  of  his  sons  get  another  estate, 
that  is,  if  any  one  of  his  sons  who  has  got  possession  of 
this  estate,  gets  one  of  the  other  estates,  or  if  any  of 
the  issue  male  of  the  body  of  any  of  the  sons  gets  the 
estate.  Here  you  have  two  events  expressed.  He  might 
have  said,  if  any  of  the  issue  male  of  my  body  get  the 
estate,  which  would  have  included  both  events,  ami 
then  you  could  not  have  split  it  up;  but  he  has  not  said 
so.  He  has  divided  it  for  some  reason  or  other,  prob- 
ably a  conveyancer's  one  because  it  is  an  alteration  of 
a  conveyancer's  form.  The  words  '  sons '  and  '  issue 
male '  are  both  added,  but  he  has  divided  that  and  sug- 
gests two  events,  then  and  in  any  of  the  events  'and 
so  often  as  the  same  shall  happen  the  uses  hereby  lim- 
ited of  and  concerning  my  freehold  hereditaments  tit  or 
in  trust  for  any  such  younger  son  or  whose  issue  male 
shall  for  the  time  being  become  entitled  aforesaid,  and 
to  or  in  trust  for  his  issue  male  shall  absolutely  cease.' 
That  is,  there  is  a  cessor  of  the  estate  either  of  tin; 


300  SEPARABILITY.  [CH.  X. 

younger  son  or  the  issue  male  of  the  younger  son.  Why 
should  I  alter  the  words?  Why  should  I  say  that  the 
event  of  the  younger  son  properly  expressed  succeeding 
to  the  estate  being  in  due  time  is  to  be  void  for  remote- 
ness? The  reason  suggested  to  me  is  this,  it  is  quite 
plain  he  means  it  to  go  along  the  whole  line,  I  agree. 

"  So  in  the  case  of  a  man  dying  without  a  son  attain- 
ing twenty-five.  That  is  not  good  although  he  means 
it  to  apply  to  the  case  of  his  having  no  son,  and  there 
is  none.  It  is  not  what  he  means  as  to  the  event,  but 
whether  he  has  expressed  the  event  on  which  the 
estate  is  to  cease,  so  as  to  bring  one  alternative  within 
the  limits,  and  if  he  has  chosen  to  say  the  estate  is  to 
cease  first  of  all,  as  he  might  have  said,  if  a  younger 
son  becomes  a  peer  or  attains  the  age  of  fifty,  or  any 
other  event  within  the  limits,  or  any  of  the  issue  male 
of  my  younger  sons  shall  become  a  peer,  one  gift  over 
might  be  valid,  he  might  have  said  if  any  of  my  issue 
male  shall  become  a  peer,  or  if  the  issue  male  of  my 
younger  son  become  a  peer  thereupon  the  estate  shall 
go  over,  that  would  have  been  different,  but  I  think  I 
have  no  right  to  alter  the  expression.  The  law  is  purely 
technical.  The  expressions  are  there,  and  using  them 
gives  effect  to  the  real  intention.  Why  should  I  go  out 
of  my  way  to  extend  technical  law  to  a  case  to  which 
it  has  not  hitherto  been  extended?  It  seems  to  me  that 
I  ought  to  read  the  expressions  as  I  find  them.  The 
event  which  is  expressed  has  happened.  It  is  within 
legal  limits,  and  I  think  the  estate  should  go  over." 

"  Thus  a  gift  to  B.  if  no  child  of  A.  reaches  twenty- 
five,  is  bad,  although  A.  dies  without  children ;  while  if 
the  gift  over  had  been  if  A.  dies  without  children,  or  if 
his  children  all  die  under  twenty-five,  then  on  A's  death 
without  children,  the  gift  over  would  have  taken 
effect." 1 


'Gray,  Perpetuities,  2nd  Ed.,  §  331. 


§  439.]         ALTERNATIVE  FUTURE  DISPOSITIONS.  801 

Professor  Gray,  after  quoting  the  foregoing  remarks 
of  Jessel,  M.  R,  adds:  "  The  doctrine  that  where  a  testa- 
tor has  not  himself  separated  limitations,  the  law  will 
not  separate  them  for  him,  is  spoken  of,  by  Jessel, 
M.  R.,  in  Miles  v.  Harford,  as  "technical,"  but  it  is 
an  almost  necessary  doctrine,  because  the  line  of  sepa- 
ration may  be  drawn  at  an  infinite  number  of  places, 
and  there  is  nothing  to  determine  which  of  them  shall 
be  taken."  1 

§  438.  An  illustration  of  the  class  of  cases  where  the 
gift  is  split  by  the  grantor  or  testator  is  found  in 
Schettler  v.  Smith.2  In  that  case  the  testator  himself 
expressly  made  alternative  gifts,  one  gift  limited  upon 
the  death  of  the  widow  of  his  son  if  the  son  should  leave 
a  widow,  which  was  held  bad,  because  such  widow 
might  be  a  person  not  in  being  at  the  death  of  the  testa- 
tor ;  and  another  gift  limited  upon  the  death  of  the  son 
without  leaving  a  widow,  in  which  latter  event  the  gift 
over  was  good.3  In  Kiah  v.  Grenier,*  there  were  alter- 
native dispositions  limited  to  take  effect  upon  or  after 
the  termination  of  the  life  of  a  designated  person  in 
being.  One  of  these  dispositions  was  limited  upon  the 
contingency  that  that  person  should  leave  no  issue  or 
widow  surviving,  and  other  dispositions  were  limited 
upon  other  contingencies.5 

§  439.  An  illustration  of  the  opposite  class  of  cases 
where  the  gift  is  not  split  by  the  grantor  or  testator,  is 


1  Perpetuities,  2nd  Ed.,  §  354  a. 

Ml  N.  Y.  328. 

8  See  Matter  of  Wilcox,  194  N.  Y.  288,  294. 

4  56  N.  Y.  220. 

"DeKay  v.  Irving,  5  Den.  646,  654;  Wilson  v.  White,  109  N.  Y.  59, 
61;  Kelso  v.  Lorillard,  85  N.  Y.  177,  182;  Rose  v.  Rose,  4  Abb.  Ct. 
App.  Dec.  108,  114,  115;  Genet  v.  Hunt,  113  N.  Y.  13S;  Matter  of 
Murray,  75  App.  Div.  246. 


302  SEPARABILITY.  [CH.  X. 

found  in  Matter  of  Wilcox.1  In  that  case  the  testator 
bequeathed  one  third  of  his  residuary  estate  "  to  my 
said  executors  in  trust  for  the  purpose  of  paying  the 
income  thereof  to  my  daughter,  Frances  D.  Wilcox,  for 
and  during  the  term  of  her  natural  life,  annually,  and 
at  her  decease  I  give,  devise  and  bequeath  to  her  issue, 
share  and  share  alike,  such  income,  and  as  each  of  her 
said  issue  shall  attain  the  age  of  twenty-one  years,  I 
give,  devise  and  bequeath  to  it  one  equal  undivided 
share  of  the  principal  of  said  remaining  third,  and  in 
case  my  said  daughter,  Frances  D.  Wilcox,  shall  die, 
leaving  no  issue  born  to  her,  which  shall  attain  the  age 
of  twenty-one  years,  then  and  in  such  case,  said  remain- 
ing third  of  my  residuary  estate,  I  give,  devise  and  be- 
queath to  my  daughter,  Maria  E.  Sanders,  and  my  son 
Charles  McCoy,  share  and  share  alike  forever."  Frances 
left  no  issue  her  surviving.  The  property  involved  was 
personal  property.  The  trust  during  minority  for  such 
issue  as  Frances  might  leave  surviving  her  was  held 
invalid  on  the  ground  that  they  might  be  persons  not  in 
being  at  the  creation  of  the  estate;  the  contingent  re- 
mainder over  was  invalid  because  it  was  not  required 
to  vest,  if  ever,  by  the  end  of  two  designated  lives  in 
being;  but  it  was  claimed  that  there  was  an  implied 
alternative  gift  to  take  effect  at  the  death  of  Frances  in 
the  event,  which  in  fact  occurred,  that  she  left  no  issue 
surviving.  But  this  view  of  the  matter  was  rejected 
by  the  Court  of  Appeals.  "  If  the  learned  court  [below] 
intended  to  assert  that  the  gift  over  by  itself  implied 
alternatives,  to  wit,  a  gift  on  the  contingency  that 
Frances  died  without  issue  her  surviving — a  gift  that 
would  have  been  unquestionably  good — and  a  gift  on 
the  contingency  that  no  issue  that  she  might  leave 
should  reach  majority  such  a  doctrine  seems  to  be  in 


1194  N.  Y.  288. 


§  440.]         ALTERNATIVE  FUTURE  DISPOSITIONS.  303 

direct  opposition  to  the  decided  cases.  It  is  said  by 
Professor  Gray  in  his  work  on  Perpetuities,  section  331 : 
"  Very  often,  indeed  generally,  a  future  contingency 
which  is  too  remote  may  in  fact  happen  within  the 
limit  prescribed  by  the  rule  against  perpetuities,  and 
a  gift  conditioned  on  such  contingency  may  be  put  into 
one  of  two  classes  according  as  the  contingency  happens 
or  does  not  happen  within  those  limits;  but  unless  this 
division  into  classes  is  made  by  the  donor,  the  law  will 
not  make  it  for  him,  and  the  gift  will  be  altogether 
bad."  J 

§  440.  As  applied  to  the  English  Rule  against  Perpe- 
tuities, there  is  an  exception  to  the  principles  in  rela- 
tion to  splitting,  already  discussed,  which,  although  not 
yet  considered  by  the  courts  in  New  York,  should  here 
be  stated.  Mr.  Marsden  2  states  it  as  follows :  "  There 
is  an  important  exception  to  the  rule  just  stated  [split- 
ting] where  a  devise  of  real  estate  is  expressed  to  take 
effect  upon  an  event  which  includes  two  contingencies, 


flatter  of  Wilcox,  194  N.  Y.  288,  294;  Matter  of  Howland,  75 
App.  Div.  207.  Compare  what  might  have  been  done  by  the  testator 
in  Herzog  v.  Title  Guarantee  &  Trust  Co.,  177  N.  Y.  86,  in  splitting 
the  provision  in  the  codicil,  according  to  whether  or  not  the 
beneficiary  should  or  should  not  survive  the  two  designated  lives. 
See  also  Proctor  v.  Bishop  of  Bath  and  Wells,  2  H.  Bl.  358;  Miles 
v.  Harford,  12  Ch.  D.  691,  702-5  and  other  cases  cited  by  PTofessor 
Gray,  Perpetuities,  2nd.  Ed.  §  331  et  seq.;  Marsden,  Perpetuities, 
§  72;   Brown  v.  Evans,  34  Barb.  594. 

It  is  difficult  to  harmonize  the  decision  in  Schlereth  v.  Schlereth, 
173  N.  Y.  444,  with  the  principles  set  forth  in  Matter  of  Wilcox,  191 
N.  Y.  288,  and  Schettler  v.  Smith,  41  N.  Y.  368,  on  account  of  the 
splitting  of  the  gift  which  was  effected  by  paragraph  VIII  of  the 
will,  (see  the  dissenting  opinion  of  Laughlin,  J.,  73  App.  Div.  283), 
unless  the  decision  was  predicated  upon  the  view  that  the  Beveral 
alternatives  as  stated  in  paragraphs  VII,  VIII,  and  IX,  were  so 
Interwoven  as  to  indicate  that  paragraph  VIII.  when  read  in  i 
nection  with  the  others,  also  contemplated  a  further  and  Illegal 
suspension  or  postponement  of  vesting. 

*  Perpetuities,   73-4. 


304  SEPARABILITY.  [CH.  X. 

one  of  which  is  such,  that,  if  it  happens,  the  devise  will 
operate  by  way  of  remainder,  though  if  the  other  hap- 
pens, it  will  operate  as  an  executory  limitation.  In 
this  case  the  devise  may  be  "  split,"  and  if  the  event 
so  happens,  it  will  take  effect  as  a  legal  remainder; 
though,  if  the  alternative  event  were  to  happen  it  would 
be  void  for  remoteness."  In  view  of  the  disappear- 
ance of  the  old  distinctions,  it  would  apparently  be 
impossible  to  draw  any  such  distinction  under  the 
law  of  New  York.1  Another  point  worthy  of  notice 
concerning  the  principles  in  relation  to  "  splitting,"  is 
thus  stated  by  Mr.  Marsden  :  2  "  The  rule  which  requires 
the  several  events  upon  which  a  limitation  is  intended 
to  take  effect  to  be  expressed  separately,  where  any  one 
of  them  may  occur  beyond  the  legal  period,  does  not 
apply  to  a  clause  affecting  separate  or  distinct  limita- 
tions or  interests,  as  to  some,  but  not  all,  of  which  its 
operation  would  be  too  remote.  Such  a  clause  will  be 
valid,  and  will  take  effect  in  those  cases  where  it  can- 
not operate  remotely,  though  as  to  the  others  it  is  void 
for  remoteness." 

3.  Contingencies  with  an  Alternative  Application. 

§  441.  There  are  two  leading  cases  that  well  illus- 
trate this  class. 

§  442.  (a.)  Purdy  v.  Hayt.z  Here  testator  devised 
land  to  his  sisters  Jane  and  Catherine,  as  tenants  for 
life  with  cross  remainders;  and  after  the  death  of  both, 


*See  Matter  of  Wilcox,  194  N.  Y.  288;  Evers  v.  Challis,  18  Q.  B. 
224,  231;  7  H.  L.  C.  531,  and  other  cases  cited  in  Gray,  Perpetuities, 
2nd  Ed.  §§  338  et  seq.  Also  XI  Columbia  Law  Review,  270.  §  300  d 
supra. 

2  Perpetuities,  79,  citing,  Cromek  v.  Lumb,  2  Y.  &  C.  C.  C,  565; 
Arnold  v.  Congreve,  1  Russ.  &  M.  209;  Peard  v.  Kekewich,  15  Beav. 
166,  and  other  cases. 

s92  N.  Y.  446. 


§  442.]         ALTERNATIVE  FUTURE  DISPOSITIONS.  305 

then  to  Elizabeth  for  life;  and  at  her  death  the  princi- 
pal to  be  divided  equally  between  any  children  Eliza- 
beth might  leave  surviving.  The  following  points  call 
for  special  attention : 

(1)  The  ultimate  remainder  is  contingent. 

(2)  The  interests  of  Jane  and  Catherine,  although 
undivided,  are  to  be  contemplated  as  distinct  shares. 

(3)  The  share  of  the  sister  first  dying  is  limited  to 
pass  through  three  successive  life  estates  before  reach- 
ing the  ultimate  remainder,  while  the  share  of  the  sis- 
ter second  to  die  is  limited  to  pass  through  only  two 
successive  life  estates  before  reaching  the  ultimate  re- 
mainder. For  suppose  Jane  to  be  the  one  first  to  die. 
Her  share  has  then  passed  through  one  life,  and  goes  in 
cross  remainder  to  Catherine,  whose  life  constitutes 
a  second  successive  life.  On  her  death  it  is  limited  to 
Elizabeth  for  life,  but  as  this  estate  is  the  third  in  suc- 
cession it  must  be  cut  off.1  The  ultimate  remainder, 
however,  is  contingent,  and  the  persons  entitled  to  it 
cannot  be  known  until  Elizabeth's  death.  A  contingent 
remainder  cannot  be  accelerated  to  take  effect  at  the 
close  of  the  second  successive  life  estate.  The  statute 
on  this  point  refers  only  to  vested  remainders.2  There 
fore  as  to  this  share  the  ultimate  remainder  is  illegal. 
Recurring  now  to  Catherine's  own  share,  at  her  deatli  it 
has  passed  through  but  one  life.  Jane's  prior  death 
having  removed  the  possibility  of  a  cross  remainder  on 
this  share,  it  passes  at  once  to  Elizabeth.  On  her  death 
it  has  passed  through  but  two  lives,  and  may,  therefore, 
vest  in  remainder  in  her  surviving  children. 

(4)  Looking  at  the  limitations  as  they  stand  in  the 
will  it  is  evident  that  the  ultimate  remainder  will  be 


1  Supra,  §  320. 

aPurdy  v.  Hayt,  92  N.  Y.  446,  452;  Dana  v.  Murray.  122  N.  Y.  604, 
618. 


306  SEPARABILITY.  [CH.  X. 

good  as  to  one  share,  and  will  be  bad  as  to  the  other. 
Which  share  it  is  that  will  be  affected  by  the  invalidity, 
cannot  possibly  be  determined  beforehand.  This  un- 
certainty is  of  a  different  character  from  that  involved 
in  the  preceding  classes,  for  here  the  uncertainty  arises 
out  of  the  question  as  to  which  share  it  is  that  is  to  be 
affected  by  an  illegal  remainder.  Until  one  tenant  or 
the  other  dies,  the  uncertainty  involves  all  portions  of 
the  property. 

Inasmuch  as  this  uncertainty  must  cease,  and  the 
share  with  the  illegal  remainder  must  be  ascertained, 
within  the  statutory  period,  it  was  held  that  the  entire 
remainder  is  not  invalid,  and  that  when,  by  the  death 
of  either  Jane  or  Catherine,  it  is  ascertained  which 
ultimate  remainder  is  void,  it  may  be  cut  off,  while  the 
ultimate  remainder  on  the  other  share  may  be  pre- 
served. For  during  the  term  it  cannot  be  said  of  any 
particular  share  or  portion,  that  the  limitation  as  to 
that  share  is  such  that  it  may  be  unduly  suspended. 
There  may  be  an  undue  suspension,  but  it  is  impossible 
to  charge  it  beforehand  upon  any  particular  property. 
As  the  court  say :  the  "  rule  relates  to  cases  where,  if 
the  limitations  take  effect,  in  their  order,  as  contem- 
plated by  the  grantor  or  devisor,  some  of  the  estates 
will  not  vest  within  the  prescribed  period,     *     *     *    ."  x 

§  443.  (b.)  Dana  v.  Murray.2  Here  land  was  given 
in  trust  for  one  life,  with  a  power  of  appointment  by 
Avill  in  the  beneficiary.  At  the  death  of  this  beneficiary, 
therefore,  the  property  had  already  passed  through  one 
life.  Apart  from  certain  provisions  not  here  in  point, 
the  grantee  of  the  power  devised  the  land  to  four  ten- 
ants in  common,  for  life,  with  cross  remainders,  and 
with  a  further  contingent  ultimate  remainder.     It  was 

1  Also  Matter  of  Ewen,  7  Misc.  619. 
2 122  N.  Y.  604. 


§  443.]         ALTERNATIVE  FUTURE  DISPOSITIONS.  307 

contended,  that  under  the  authority  of  Purdy  v.  Hayt, 
(supra),  the  share  of  the  one  who  might  prove  to  be  the 
fourth  to  die  would  have  passed  through  only  two  lives 
in  all,  and  that  the  remainder  might  therefore  be  sus- 
tained. But  the  court,  in  deciding  to  the  contrary, 
point  out  the  distinction  that  here  the  uncertainty  as 
to  which  tenant  will  be  the  fourth  to  die  cannot  of 
course  be  determined  until  three  other  lives  have  ex- 
pired. In  other  words,  an  uncertainty  of  the  charac- 
ter here  under  discussion  is  fatal  to  all  the  ultimate 
remainders,  unless  it  must  cease,  and  the  remainders 
become  capable  of  final  classification  as  valid  or  invalid, 
by  the  end  of  the  statutory  period.1 


1  See  also  Matter  of  Perry,  48  Misc.  285;  Graham  v.  Graham,  49 
Misc.  4.  Compare  (cross  remainders  In  trust)  Brown  v.  Richter, 
76  Hun,  469,  affd  144  N.  Y.  706;  Duncklee  v.  Butler,  38  App.  Div. 
99;  Walsh  v.  Waldron,  63  Hun,  315,  aff'd  135  N.  Y.  650;  Simpson  v. 
Trust  Co.  of  America,  129  App.  Div.  200,  aff'd  197  N.  Y.  586; 
Hardenhergh  v.  McCarthy,  130  App.  Div.  538. 


CHAPTER  XL 

CONSTRUCTION. 

■§,  444.  The  following  sections  are  devoted  to  ref- 
erences to  certain  general  rules  of  construction  not  men- 
tioned in  other  chapters,  and  selected  for  attention  here 
on  account  of  their  special  bearing  on  the  main  topics 
under  discussion. 

§  445.  Here,  as  elsewhere,  the  leading  principle  of 
construction  is,  that  the  duly  expressed  and  ascer- 
tained intent  is  controlling.1  And  to  this  end  even  dis- 
positions which  are  in  themselves  void  may  be  referred 
to  for  aid  in  ascertaining  the  intent  as  to  other  dispo- 
sitions.2 

§  446.  If  the  provisions  of  the  instrument  are  free 
from  reasonable  doubt  as  to  their  intended  meaning 
they  should  first  be  construed  as  if  the  Rules  relating 
to   suspension,    or   postponement    of   vesting,    did   not 


1  Real  Prop.  L.  §  240,  subd.  3;  Roosa  v.  Harrington,  171  N.  Y.  341,  348, 
350;  French  v.  Carhart,  1  K  Y.  96;  Heath  v.  Hewitt,  127  K  Y.  166,  173; 
Robinson  v.  Martin,  200  N.  Y.  159,  164;  Scholle  v.  Scholle,  113  N.  Y. 
261,  273;  Holly  v.  Hirsch,  135  N.  Y.  590;  Parks  v.  Parks,  9  Pai.  107; 
Hillen  v.  Iselin,  144  N.  Y.  365,  374;  Cotton  v.  Berkelman,  142  N.  Y.  160, 
163;  Towler  v.  Towler,  142  N.  Y.  371,  374,  376;  Starr  v.  Starr,  132  K  Y. 
154;  Lougheed  v.  D.  B.  Church,  129  N.  Y.  211,  217;  Kernochan  v. 
Marshall,  165  N.  Y  472,  478;  Morton  v.  Woodbury,  153  N.  Y.  243; 
Matter  of  Tompkins,  154  N.  Y.  634,  645;  Matter  of  Title  G.  &  T.  Co.,  195 
N.  Y.  339.     See  also  Tilden  v.  Green,  130  N.  Y.  29,  52. 

2  Morton  v.  Woodbury,  153  N.  Y.  243;  Lougheed  v.  B.  B.  Church,  129 
N.  Y.  211,  217.  On  the  question  of  what  it  was  that  he  intended  by  what 
he  said,  a  testator  is  deemed  to  be  speaking  as  of  the  time  when  he  executed 
his  will.     Matter  of  Hoffman,  201  N.  Y.  247,  255. 

308 


§  447.]  CONSTRUCTION.  309 

exist,  and  those  Rules  should  he  resorted  to  after  the 
meaning  has  thus  been  determined,  and  then  only  for 
the  purpose  of  ascertaining  whether  the  provisions,  as 
so  construed,  are  valid  or  void.1  But  if  it  appears  that 
there  is  fair  room  for  two  constructions,  the  Court  will 
take  the  existence  and  application  of  the  Rules  into 
account,  and  will  adopt  that  one  of  the  permissible 
constructions  which  will  preserve,  rather  than  that 
which  would  defeat  the  validity  of  the  instrument.2 

§  447.  "  The  reports  show  an  increasing  tendency  in 
the  direction  of  liberality  in  construing  the  statutes 
relating  to  suspension  of  the  power  of  alienation,  and 
while  there  has  been  no  abatement  by  the  courts  of  the 
strictness  with  which  limitations  are  construed,  which 
transgress  the  rule  on  that  subject,  arrangements  within 
the  limit,  and  dispositions  by  way  of  trust,  are  sustained 
if  they  can  fairly  be  brought  within  the  spirit  of  the 


'Cottman  v.  Grace,  112  N.  Y.  299,  309;  Matter  of  Russell,  5Dem.  3s^: 
Coltou  v.  Fox,  67  N.  Y.  348,  351;  Van  Nostrand  v.  Moore,  52  N.  Y.  12; 
Central  Trust  Co.  v.  Egleston,  185  N.  Y.  23,  29,  33;  Herzog  v.  Title 
Guarantee  c%  Trust  Co.,  177  N.  Y.  86,  91,  92. 

2  Butler  v.  Butler,  3  Barb.  Ch.  304;  Doubleday  v.  Newton,  27  Barb. 
431,  440;  Post  v.  Hover,  33  N.  Y.  593,  601;  DuBois  v.  Ray,  35  N.  Y.  162, 
170-1;  Roe  v.  Vingut,  117  N.  Y.  204,  212,  218;  Manice  v.  Manice,  43 
N.  Y.  303,  371;  Vanderpoel  v.  Loew,  112  N.  Y.  167,  177;  N.  Y.  Life  Ins. 
&  T.  Co.  v.  Cary,  191  N.  Y.  33,  39;  Mee  v.  Gordon,  187  N.  Y.  300,  810 . 
Denison  v.  Denison,  185  N.  Y.  438,  445;  Trask  v.  Sturges,  170  N.  Y. 
482,  495-496;  Haug  v.  Schumacher,  166  N.  Y.  506,  513;  Williams  v.  Jones, 
166  N.  Y.  522;  Steinway  v.  Steinway,  163  N.  Y.  183,  201;  Chwatal  v. 
Schreiner,  148  N.  Y.  683;  Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  150; 
Cochrane  v.  Schell,  140  N.  Y.  516;  Close  v.  Farmers' L.  &  T.  Co.,  195 
N.  Y.  92,  99;  Kent  v.  Kent,  99  App.  Div.  112;  Forsyth  v.  Rathbone,  84 
Barb.  388,  403;  Martelli  v.  Holloway,  5  H.  of  L.  532,  cited  by  Farwell, 
Powers,  1st  Ed.  p.  230.  As  to  the  arguments  on  the  question  of  construc- 
tion, that  testator  is  to  be  presumed  to  know  the  law,  and  not  to  liave 
intended  what  would  be  illegal;  or  that  he  is  to  be  assumed  to  have  in- 
tended to  make  a  valid  will;  compare  with  the  cases  last  cited.  Van 
Nostrand  v.  Moore,  52  N.  Y.  12.  22;  Crooke  v.  County  of  Kings,  97  X.  V. 
421,  438;  Manice  v.  Manice,  43  N.  Y.  303,  and  the  various  rules  of  con- 
struction mentioned  in  this  chapter. 


810  CONSTRUCTION.  [CH.  XI. 

statute,  although  not  within  its  literal  language." x 
And  in  a  case  of  doubtful  construction  the  courts  may 
lean  to  a  meaning  favored  by  present  public  policy,  even 
though  that  differs  from  the  policy  existing  when  the 
instrument  went  into  effect.2 

§  448.  Effect  must  be  given  if  possible  to  every  part 
of  the  instrument.3  And  the  law  favors  a  construction 
that  will  avoid  intestacy ; 4  and  favors  a  devise  or  be- 
quest in  absolute  form  as  against  less  clear  and  positive 
later  dispositions  that  might  cut  it  down.5 

§  449.  Neither  the  technical  nor  the  ordinary  mean- 
ing of  given  words  will  be  allowed,  as  such,  to  override 
the  meaning  clearly  intended  by  the  testator.6 

§  450.  In  order  to  give  effect  to  the  intent  as  clearly 
shown,  the  court  may  transpose,  reject  or  supply  words, 


1  Cochrane  v   Schell,  140  N.  Y.  516,  532. 

2  Chwatal  v.  Schreiner,  148  N.  Y.  683,  690. 

3  Terry  v.  Wiggins,  47  N.  Y.  512;  Matter  of  Tompkins,  154  N.  Y. 
634,  645. 

4Shult  v.  Moll,  132  N.  Y.  122,  127;  Dubois  v.  Ray,  35  N.  Y.  162; 
Hoppock  v.  Tucker,  59  N.  Y.  203;  Phillips  v.  Davies,  92  N.  Y.  199;  Ferry 
v.  Sampson,  112  N.  Y.  415;  Lamb  v.  Lamb,  131  N.  Y.  227;  Mitchell  v. 
Thorne,  134  N.  Y.  536;  Matter  of  McClure,  136  N.  Y.  238;  Matter  of 
Tompkins,  154  N.  Y.  634,  645;  Johnson  v.  Brasington,  156  N.  Y.  181; 
Meeks  v.  Meeks,  161  N.  Y.  66,  71 ;  Barson  v.  Mulligan,  191  N.  Y.  306, 
325;  Close  v.  F.  L.  &  T.  Co.,  195  N.  Y.  92,  100;  compare  Matter  of 
Hoffman,  201  N.  Y.  247,  256. 

5  Clay  v.  Wood,  153  N.  Y.  134;  Williams  v.  Boul,  101  App.  Div.  593, 
aff'd  184  N.  Y.  605;  Washbon  v.  Cope,  144  N.  Y.  287,  297;  Shult  v. 
Moll,  132  N.  Y.  122;  Banzer  v.  Banzer,  156  N.  Y.  429  ;  Goodwin  v.  Cod- 
dington,  154  N.  Y.  283;  Redfield  v.  Redfield,  126  N.  Y.  466;  Benson  v. 
Corbin,  145  N.  Y.  351,  359;  Howland  v.  Clendening,  134  N.  Y.  305;  Mee 
v.  Gordon,  187  N.  Y.  400,  407;  Kinkele  v.  Wilson,  151  N.  Y.  269  ;  Brad- 
hurst  v.  Field,  135  N.  Y.  564 ;  Matter  of  McClure,  136  N.  Y.  238;  Under- 
wood v.  Curtis,  127  N.  Y.  523;  Yiele  v.  Keeler,  129  N.  Y.  190. 

6  Schmidt  v.  Jennett,  195  N.  Y.  486;  Lawton  v.  Corlies.  127  K  Y.  100; 
Heath  v.  Hewitt,  127  N.  Y.  166;  Lythe  v.  Beveridge,  58  N.  Y  592; 
Hillen  v.  Iselin,  144  N.  Y.  365. 


§  451.]  CONSTRUCTION.  311 

phrases  or  provisions.1  It  would  appear  that  this  fa- 
miliar rule  might  be  more  fully  expressed  by  saying 
that  if  a  given  intent  is  evident  upon  a  consideration  of 
the  entire  will,  the  court  will  give  it  precedence  over 
minor  and  unconvincing  indications  of  a  contrary  intent 
based  upon  the  mere  position,  presence  or  absence  of 
particular  words,  phrases  or  provisions.  And  there  is 
a  so-called  rule  of  last  resort,  that  in  case  of  wholly 
irreconcilable  repugnancy  the  later  clause  or  codicil 
prevails.2  In  relation  to  the  distinction  between  vested 
and  contingent  future  estates,  certain  further  points 
here  call  for  mention. 

§  451.  The  law  favors  the  vesting  of  estates,  and  as 
early  as  may  be,  and  a  remainder  is  not  to  be  considered 
contingent  in  any  case  where,  consistently  with  the 
intent,  it  may  be  regarded  as  vested.3  Reference  may 
here  be  made  to  the  proposition,  that  the  use,  in  con- 
nection with  the  gift  of  a  future  estate,  of  such  terms 
as  "  from  and  after,"  "  then,"  "  upon  the  death,"  does 
not  in  itself  render  the  remainder  contingent.  The  in- 
tent controls.4 


1  Starr  v.  Starr,  132  N.  Y.  154. 

'Everitt  v.  Everitt,  29  N.  Y.  39,  83;  Croz:er  v.  Bray,  120  N.  Y. 
Van  Nostrand  v.  Moore,  52  N.  Y.  12,  20;  Adams  v.  Massey,  184  N.  Y.  62; 
Henderson  v.  Merritt,  10  App.  Div.  397 ;  Trustees  v.  Kellogg,  16  N.  Y. 
83,  88. 

3  Embury  v.  Sheldon,  168  N.  Y.  227,  236;  Bowditch  v.  Ayrault,  188 
N.  Y.  222;  Stokes  v.  Weston,  142  N.  Y.  433;  Williams  v.  Jones,  166 
N.  Y.  522,  539;  Nelson  v.  Russell,  135  N.  Y.  137;  Hersee  v.  Simpson,  154 
N.  Y.  496.  500;  Goodwin  v.  Coddington,  154  N.  Y.  283;  Matter  of  See- 
beck,  140  N.  Y.  241;  Kernochan  v.  Marshall,  165  N.  Y.  472;  Connelly  v. 
O'Brien,  166  N.  Y.  406,  408.  But  a  contrary  intent,  duly  shown,  will  con- 
trol. McGillis  v.  McGillis,  154  N.  Y.  532,  539^0;  Dougherty  v.  Thomp- 
son, 167  N.  Y.  472,  483. 

4  Nelson  v.  Russell,  135  N.  Y.  137;  Matter  of  Seaman,  147  N.  Y.  69; 
Corse  v.  Chapman,  153  N.  Y.  466;  Matter  of  Tompkins,  154  N.  Y.  884; 
Hersee  v.  Simpson,  154  N.  Y.  496;  Matter  of  Young,  145  N.  Y.  685;  Losey 
v.  Stanley,  147  N.  Y.  560.  567:  Miller  v.  Gilbert,  144  N.  Y.  68;  Radley  v. 
Kuhn,  97  N.  Y.  26,  35 ;  Tucker  v.  Tucker,  5  N.  Y.  408 ;  Roome  v.  Phillips, 


312  CONSTRUCTION.  [CH.  XI. 

§  452.  There  are  also  numerous  presumptions  illus- 
trated by  those  in  favor  of  the  widow,1  and  the  heirs,2 
as  variously  classified,  according  to  the  facts  in  given 
cases,  as  related  to  the  ancestral  blood;  issue;  descend- 
ants;3 in  favor  of  equality  among  children,  in  dis- 
tributing estates ; 4  against  the  disinheritance  of  re- 
maindermen who  may  happen  to  die  before  the  deter- 
mination of  the  precedent  estate ; 5  the  principles  gov- 
erning residuary  clauses;6  and  codicils.7 


24  N.  Y.  463;  Ackerman  v.  Gorton,  67  N.  Y.  63;  Livingston  v.  Greene, 
52  N.  Y.  118;  Taggart  v.  Murray,  53  N.  Y.  233.  Compare  (contingent) 
McGillis  v.  McGillis,  154  N.  Y.  532,  541 ;  Matter  of  Bowers,  109  App.  Div. 
566,  aff'd  184  N.  Y.  574;  Matter  of  Baer,  147  N.  Y.  344. 

1Moffett  v.  Elmendorf,  152  N.  Y.  475,  482;  Stimson  v.  Vroman,  99 
N.  Y.  80 ;  Horstman  v.  Flege,  172  N.  Y.  381 ;  see  Matter  of  Gorden,  172 
N.  Y.  25. 

2  Goodwin  v.  Coddington,  154  N.  Y.  283;  Mullarky  v.  Sullivan,  136 
N.  Y.  227;  Soper  v.  Brown,  136  N.  Y.  244;  Matter  of  Truslow,  140  N.  Y. 
599,  605;  Close  v.  F.  L.  &  T.  Co.,  195  N.  Y.  92,  100;  Knowlton  v.  Atkins, 
134  N.  Y.  313,  321. 

3  March  v.  March,  186  K  Y.  99;  Goodwin  v.  Coddington,  154  N.  Y. 
283;  Knowlton  v.  Atkins,  134  N.  Y.  313,  321. 

4  Stokes  v.  Weston,  142  N.  Y.  433,  439. 

6  Connelly  v.  O'Brien,  166  N.  Y.  406,  40S,  and  cases  there  cited.     Com- 
pare Lewisohn  v.  Henry,  179  N.  Y.  352;  Haug  v.  Schumacher,  166  N.  Y. 
506,  516,  and  cases  there  cited;  Williams  v.  Jones,  166  N.  Y.  522;  Wilber 
v.  Wilber,   165  N.  Y.  451;   Matter  of  Crane,  164  N.  Y.  71;  Matter  of 
Traver,    161  N.  Y.   54;   Dougherty  v.   Thompson,  167  N.  Y.  472,  483 
Kelso  v.  Lorillard,  85  N.  Y.  177,  184;  Lewis  v.  Howe,  174  N.  Y.  340,  346 
Dimmick  v.  Patterson,  142  N.  Y.  322 ;  Matter  of  Seebeck,  140  N.  Y.  241 
Zartman  v.  Ditmars,  37  App.  Div.  173;  Smith  v.  Smith,  141  N.  Y.  29. 

6 Matter  of  Miner,  146  N.  Y.  121 ;  Matter  of  Title  G.  &  T.  Co.,  195  N.  Y 
339;  Seibert  v.  Miller,  34  App.  Div.  602;  Lamb  v.  Lamb,  131  N.  Y.  227 
Compare  Matter  of  Dewitt,  113  App.  Div.  790,  aff'd  188  N.  Y.  567 
Matter  of  Benson,  96  N.  Y.  499;  Riker  v.  Cornwell,  113  N.  Y.  115 
Moffett  v.  Elmendorf,  152  N.  Y.  475;  Matter  of  Allen,  151  N.  Y.  243 
U.  S.  T.  Co.  v.  Black,  146  N.  Y.  1 ;  Morton  v.  Woodbury,  153  N.  Y.  243 
Thomas,  Estates  Created  by  Will,  II,  pp.  1568-1603.  Residue  of  residue, 
Booth  v.  Baptist  Church,  126  N.  Y.  215,  245;  Matter  of  Hoffman,  201 
N.  Y.  247. 

1  Westcott  v.  Cady,  5  Johns.  Ch.  334;  Pierpont  v.  Patrick,  53  N.  Y.  591; 
Herzog  v.  Title  Guarantee  &  Trust  Co.,  177  N.  Y.  86. 


§  455.]  CONSTRUCTION.  313 

§  453.  Sometimes  presumptions,  rules  or  leanings 
conflict,  and  in  that  event  certain  of  them  are  regarded 
as  stronger  than  others.1 

§  454.  A  grantor  or  testator  is  at  liberty  to  create 
either  a  vested  or  a  contingent  future  estate,  as  he  sees 
fit.2  But  this  does  not  mean  that  he  can  make  it  vested 
or  contingent  by  merely  calling  it  so.  His  intent  is  con- 
trolling in  determining  whether  he  meant  to  create  an 
estate  having  the  characteristics  which  are  mentioned 
in  the  statutory  definition  of  a  vested  future  estate,  or 
one  having  the  characteristics  which  are  mentioned  in 
the  statutory  definition  of  a  contingent  future  estate; 
and  this  intent  being  duly  ascertained  it  is  then  for  the 
first  time  that  the  statutory  definitions  come  into  play 
and  operate  to  classify  the  estate  accordingly  as  vested 
or  contingent.  Thus  if  a  future  estate  is  limited  to  a 
person  not  yet  in  being  it  must,  under  the  statute,  be 
contingent,  even  though  the  creator  of  the  estate  de- 
scribes it  in  terms  as  vested.3 

§  455.  Now  these  statutory  definitions  have  given 
rise  to  much  controversy.  The  question  has  been, 
whether  they  are  intended  to  perpetuate  the  form  of  the 
common  law  definitions,  or  in  one  important  respect  to 
change  it.  For  at  the  common  law,  in  order  to  render 
a    remainder   vested,    it   was    necessary,    among    other 


1  Quinn  v.  Hardenbrook,  54  N.  Y.  82;  Matter  of  McClure,  136  N.  Y. 
238;  Johnson  v.  Brasington,  156  N.  Y.  181,  186;  McGillis  v.  McGillis, 
154  N.  Y.  532,  540. 

2  Real  Property  Law,  240,  sub.  3;  Matter  of  Brown,  154  N.  Y.  818 
323-4;  McGillis  v.  McGillis.  154  N.  V.  532,  539-40;  Dana  v.  Murray  122 
N.  Y.  604;  Lewisohn  v.  Henry,  179  N.  Y.  352,  361:  Baug  v.  Schumacher, 
166  N.  Y.  506,  513:  Clark  v.  Camnmnn,  160  N.  Y.  315,  825;  Miller  v. 
Gilbert,  144  N.  Y.  68,  73;  Sawyer  v.  Cubby.  146  X.  Y.  192,  195;  Matter 
of  Seebeck,  140  N.  Y.  -.Ml.  246;  Bowditch  v.  Ayrault,  L88  X.  V.  2 
Matter  of  Tatum,  169  N.  Y.  514.  520. 

3  Smith  v.  Smith,  141  N.  Y.  29. 


314  CONSTRUCTION.  [CH.  XL 

things,  that  there  should  be  a  person  in  being  who  "  an- 
swered to  the  description  "  imposed  by  the  instrument. 
So  long  as  there  was  no  one  answering  to  the  descrip- 
tion, even  though  there  was  a  person  who  would  at  once 
answer  to  it  if  the  precedent  estate  were  to  cease,  the 
remainder  could  not  vest.  This  proposition  rested  on 
the  principle  that  the  intent  of  the  creator  of  the  estate, 
as  thus  indicated,  was  to  be  observed,  and  the  law  found, 
in  the  adoption  of  a  form  of  description  to  which  no 
one  could  answer  until  a  future  time,  one  indication  of 
an  intent  to  postpone  the  vesting,  by  incorporating  a 
conditional  element  into  the  gift. 

§  456.  The  common  law  principle  which  includes  this 
point  is  thus  stated  by  Professor  Gray :  "  If  the  condi- 
tional element  is  incorporated  into  the  description  of, 
or  the  gift  to  the  remainderman,  then  the  remainder  is 
contingent;  but  if,  after  words  giving  a  vested  interest, 
a  clause  is  added  divesting  it,  the  remainder  is  vested. 
Thus  [1]  on  a  devise  to  A  for  life,  remainder  to  his 
children,  but  if  any  child  dies  in  the  lifetime  of  A  his 
share  to  go  to  those  who  survive,  the  share  of  each  child 
is  vested  subject  to  being  divested  by  its  death.1  But 
[2]  on  a  devise  to  A  for  life,  remainder  to  such  of  his 
children  as  survive  him,  the  remainder  is  contingent."  2 

§  457.  The  distinguishing  characteristics  of  a  vested 
remainder  at  common  law,  were  that  (subject  always, 
and  only,  to  its  own  lapse,  or  defeat,  in  the  meantime) 
it  was  constantly  capable,  so  long  as  it  lasted,  of  at  once 
taking  effect  in  possession  upon  the  termination  of  a 
precedent  estate  which  must  terminate  on  the  happen- 


1  Gray,  Perpetuities,  2nd  Ed.,  §  108,  citing  Littlejohns  v.  Household,  21 
Beav.  29;  Blanchard  v.  Blanchard,  1  All.  223;  Jeefers  v.  Lampson,  10 
Ohio  St.  101. 

2  Gray,  Perpetuities,  2nd  Ed.,  §  108;  citing  Price  v.  Hall,  L.  R.  5  Eq. 
399;  Olney  v.  Hull,  21  Pick.  311,  and  many  other  cases. 


§  459.]  CONSTRUCTION.  315 

ing  of  an  event  sure  to  happen  some  time,  and  which 
might  terminate  before  the  remainder  itself  should 
expire. 

§  458.  Fearne,1  sums  up  this  doctrine  in  the  follow- 
ing words:  "In  short,  upon  a  careful  attention  to  this 
subject,  we  shall  find,  that  wherever  the  preceding  es- 
tate is  limited,  so  as  to  determine  on  au  event  which 
certainly  must  happen;  and  the  remainder  is  so  limited 
to  a  person  in  esse,  and  ascertained,  that  the  precedent 
estate  may,  by  any  means,  determine  before  the  ex- 
piration of  the  estate  limited  in  remainder,  such  re- 
mainder is  vested.  On  the  contrary,  wherever  the  pre- 
ceding estate  *  *  *  is  limited  so  as  to  determine 
only  on  an  event  which  is  uncertain,  and  may  never 
happen;  or  wherever  the  remainder  is  limited  to  a  per- 
son not  in  esse  or  not  ascertained;  or  wherever  it  is 
limited  so  as  to  require  the  concurrence  of  some  dubious 
uncertain  event,  independent  of  the  determination  of 
the  preceding  estate  and  duration  of  the  estate  limited 
in  remainder,  to  give  it  a  capacity  of  taking  effect ;  then 
the  remainder  is  contingent." 

§  459.  "  It  may  be  proper  to  explain  the  distinction 
betwixt  that  kind  of  uncertainty  which  makes  a  re- 
mainder contingent,  and  an  uncertainty  of  a  different 
kind  which  appears  to  have  been  sometimes  confounded 
with  it;  I  mean  the  uncertainty  of  a  remainder's  ever 
taking  effect  in  possession.  *  *  *  For  wherever 
there  is  a  particular  estate,  the  determination  of  which 
does  not  depend  on  any  uncertain  event,  and  a  re- 
mainder is  thereon  absolutely  limited  to  a  person  in 
esse  and  ascertained;  in  that  case  notwithstanding  the 
nature  and  duration  of  the  estate  limited  in  remainder 
may  be  such  as  that  it  may  not  endure  beyond  the  par- 


1  Contingent  Remainders;,  211 


316  CONSTRUCTION.  [CH.  XL 

ticular  estate;  and  may  therefore  never  take  effect  or 
vest  in  possession,  yet  it  is  not  a  contingent  but  a  vested 
remainder."1 

§  460.  "  It  is  not  the  uncertainty  of  ever  taking  effect 
in  possession  that  makes  a  remainder  contingent,  for  to 
that  every  remainder  for  life  *  *  *  is  and  must  be 
liable;  as  the  remainderman  may  die  *  *  *  before 
the  death  of  the  tenant  for  life.2  The  present  capacity 
of  taking  effect  in  possession,  if  the  possession  were  to 
become  vacant,  and  not  the  certainty  that  the  possession 
will  become  vacant  before  the  estate  limited  in  re- 
mainder determines,  universally  distinguishes  a  vested 
remainder  from  one  that  is  contingent."  3 

§  461.  "  A  vested  remainder  may  be  uncertain  as  well 
as  a  contingent  remainder  *  *  *  but  *  *  *  it 
is  only  uncertain  on  account  of  the  uncertainty  of  its 
duration  in  relation  to  the  duration  of  the  particular 
estate.  No  condition  is  to  be  fulfilled,  no  event  to  hap- 
pen, before  the  right  of  future  possession  or  enjoyment 
can  be  perfect ;  nothing  is  wanted  to  render  the  capacity 
of  possession  or  enjoyment  complete.  *  *  *  A 
vested  remainder  is  sure  ultimately  to  take  effect  in 
possession  or  enjoyment,  if  only  it  endures  beyond  the 
preceding  estate."  4 

§  462.  And  Mr.  Williams  says :  "  If  any  estate,  be  it 
ever  so  small,  is  always  ready,  from  its  commencement 


1  Id.  215-16. 

2  Where  there  is  an  absolutely  vested  remainder  in  fee,  the  remainder- 
man himself  may  die  before  the  termination  of  the  precedent  estate.  But 
in  that  case  his  heirs  take  through  him.  The  existence  of  this  possibility 
does  not  interfere  with  the  vested  nature  of  the  remainder.  It  is  a  ques- 
tion of  the  intent,  Van  Axte  v.  Fisher,  117  K  Y.  401;  Connelly  v. 
O'Brien,  166  N.  Y.  406;  Riker  v.  Gwynne,  201  N.  Y.  143. 

3  Fearue,  Contingent  Remainders,  215-16. 

4  "  An  Original  View,"  etc.,  being  Vol.  II  of  the  10th  ed.  of  Fearne  on 
Contingent  Remainders,  §  180  et  seq. 


§  463.]  CONSTRUCTION.  817 

to  its  end,  to  come  into  possession  the  moment  the  prior 
estates,  be  they  what  they  may,  happen  to  determine,  it 
is  then  a  vested  remainder.  *  *  *  It  would  be  an 
estate  in  possession  were  it  not  that  other  estates  have 
a  prior  claim;  and  their  priority  alone  postpones,  or 
perhaps  may  entirely  prevent,  possession  being  taken 
by  the  remainderman.  The  gift  is  immediate;  but  the 
enjoyment  must  necessarily  depend  on  the  determina- 
tion of  the  estates  of  those  who  have  a  prior  right  to 
the  possession."1  "As  distinguished  from  a  vested  re- 
mainder," a  contingent  remainder  is  an  estate  which 
is  not  ready,  from  its  commencement  to  its  end,  to  come 
into  possession  at  any  moment  when  the  prior  estates 
may  happen  to  determine."  2 

§  463.  The  reason  why  the  different  classes  of  con- 
tingent remainders  are  not  ready  to  vest  in  possession, 
is  seen  from  Blackstone's  familiar  definition,  in  which 
he  says :  "  Contingent  or  executory  remainders  (whereby 
no  present  interest  passes),  are  where  the  estate  in  re- 
mainder is  limited  to  take  effect,  either  to  a  dubious  and 
uncertain  person,  or  upon  a  dubious  and  uncertain 
event."  3  It  has  alreadv  been  stated  that  if  a  remainder 
is  vested,  there  must  be  a  remainderman  in  esse,  and 
ascertained.  But  to  fulfil  this  requirement  he  must 
answer  the  description  imposed  upon  the  remainder- 
man by  the  instrument.  Thus  a  devise  of  an  estate  to 
A  for  life,  remainder  to  the  heirs  of  B,  gives  to  B's  chil- 
dren, during  his  life,  only  a  contingent  remainder.  For 
they  are  to  take  only  in  their  capacity  as  heirs  of  B, 
and  while  he  lives  they  do  not  answer  to  thai  descrip- 
tion. In  other  words,  during  B's  life  there  are  n<>  per- 
sons in  esse  and  ascertained,  of  whom  it  could  be  said 


'  Real  Property,  253. 

» Id.  267. 

3  2  Bl.  Comm.  169. 


318  CONSTRUCTION.  [CII.  XL 

"  they  are  the  persons  to  whom  the  testator  has  given 
the  remainder  in  fee ;  "  for  he  gave  it  to  the  heirs  of  B, 
and  there  are  now  no  heirs  of  B  in  existence. 

§  464.  Such  was  the  distinction  drawn  at  the  com- 
mon law  between  vested  and  contingent  remainders. 
But  it  is  of  the  first  importance  to  keep  in  mind  the 
fact  that  the  mere  existence  of  these  formal  definitions 
was  only  the  first  step  toward  ascertaining  in  any  given 
instance  whether  a  particular  remainder  was  vested  or 
contingent.  For  as  each  new  case  came  in  question,  it 
was  still  necessary  to  determine  whether  or  not  it  had 
the  characteristics  essential  to  a  vested  remainder.  It 
was  well  to  ascertain  the  rule  that  if  it  had  that  char- 
acter then  it  was  vested.  But  did  it  have  that  charac- 
ter? Now  it  is  clear  that  the  answer  must  depend  on 
the  intention  of  the  grantor  or  devisor,  either  as  ex- 
pressed; or  inferred;  or  assumed  in  accordance  with 
settled  and  sometimes  apparently  arbitrary  rules  of  con- 
struction. 

§  465.  The  meaning  of  the  principle  according  to 
which  the  remainder  in  the  second  of  the  two  cases 
given  by  Professor  Gray,1  was  held  contingent,  and  that 
in  the  first  case  vested,  is  that  the  law  saw,  or  assumed, 
in  the  phraseology  employed  in  the  second  will,  an  in- 
tent that  there  should  not  be  persons  in  esse  and  as- 
certained, during  A's  life,  capable,  in  the  capacity  in 
which  they  then  existed,  of  taking  the  remainder  when- 
ever the  precedent  estate  determined.  In  other  words, 
the  acquisition  of  the  required  capacity  constituted  a 
collateral  contingency  which  must  happen  before  vest- 
ing. And  so,  applying  the  common  law  definitions,  the 
law  found  the  remainder  to  be  contingent.  While  in 
the  will  first  mentioned,  it  found  an  equally  clear  in- 


1  Supra,  §  456. 


§  466.]  CONSTRUCTION.  319 

tent  that  the  children,  in  the  capacity  which  they  then 
held,  should  be  capable  at  every  moment  of  taking  the 
remainder  in  possession,  whenever  the  precedent  estate 
determined,  subject  to  having  their  rights  cut  off  in 
case  of  the  happening  of  a  designated  condition  subse- 
quent ;  and  again  applying  the  same  definitions,  it  found 
that  this  remainder  was  vested.1 

§  4(36.  Turning  now  to  the  New  York  Revised  Stat- 
utes and  the  Real  Property  Law,  it  is  provided  that  "  A 
future  estate  is  either  vested  or  contingent.  It  is  vested, 
when  there  is  a  person  in  being,  who  would  have  an  im- 
mediate right  to  the  possession  of  the  property,  on  the 
determination  of  all  the  intermediate  or  precedent  es- 
tates. It  is  contingent  while  the  person  to  whom  or  the 
event  on  which  it  is  limited  to  take  effect  remains  un- 
certain."2 Now  it  has  been  said,3  that  these  statutory 
provisions  were  intended  to  effect  a  radical  change  in 
the  distinction  theretofore  existing  between  the  terms 
vested  and  contingent.  It  has  been  said  that  the  de- 
scription of  vested  future  estates  was  intended  to  be 
taken  with  absolute  literalness,  and  that  the  purpose 
and  result  of  the  adoption  of  this  section  was  to  make 
the  distinction  turn  solely  on  the  question  whether  there 
are  human  beings  in  existence  who,  no  matter  whether 
the  capacity  in  which  they  now  exist  does  or  does  nol 
correspond  with  that  set  forth  in  the  instrument  creat- 
ing the  estate,  would  as  a  matter  of  fact  become  at  once 
entitled  to  the  remainder  in  possession  if  the  precedenl 
estate  should  now  terminate. 


1  Such  also  was  the  case  in  Smith  v.  Scholtz.  68  N.  Y.  41.  61.  For 
general  authorities  on  remainders  vested  and  contingent  at  common  law, 
see  Greenleafs  Cruise,  Vol.  II,  Tit.  XYI  (202  et  seq.)\  4  Kent.  Comm. 
Lect.  59;  Challis  on  Real  Property,  Part  II,  Ch.  XI,  XII:  Williams  on 
Real  Property,  Part  II,  Ch.  I,  II,  III;  Reeves,  Real  Property,  Vol.  II. 
Chap.  60. 

2  Real  Prop.  L.,  §  40. 

3  Moore  v.  Littel,  41  N.  Y.  66. 


320  CONSTRUCTION.  [CH.  XL 

§.  467.  If  this  is,  in  reality,  the  true  construction  of 
the  statute,  the  resulting  effect  upon  the  validity  of  cer- 
tain future  estates  would  be  great.  For  a  remainder 
which  is  vested  in  interest,  even  though  defeasibly,  can- 
not be  rendered  invalid  though  the  operation  of  the 
statutory  requirements,  embodied  in  Rule  II,  of  vesting 
in  interest  by  the  end  of  the  statutory  period;  while  the 
same  estate,  if  treated  as  contingent  instead  of  defeas- 
ibly vested,  would  be  invalid  unless  so  limited  that  it 
must  become  vested  in  interest,  if  ever,  by  the  end  of 
that  period.1  It  will  be  most  convenient,  first  to  gather 
the  few,  though  weighty,  authorities  in  favor  of  the  view 
referred  to,  and  then  to  set  off  against  them  the  grounds 
for  believing  that  in  fact  no  such  change  in  the  law 
was  either  intended  or  effected.  The  authorities  in 
favor  of  a  change  are  as  follows : 

§  468.  Moore  v.  Littel.2  The  grant  under  consider- 
ation in  that  case,  was  to  John  Jackson  "  for  and  during 
his  natural  life,  and  after  his  decease  to  his  heirs  and 
their  assigns."  Habendum,  to  John  Jackson  "  for  and 
during  his  natural  life,  and  after  his  death,  then  to  his 
heirs,"  etc.  At  the  common  law,  this  disposition,  under 
the  operation  of  the  Rule  in  Shelley's  Case,  would  have 
given  an  estate  in  fee  to  John  Jackson,  and  his  heirs 
would  not  have  taken  any  remainder  as  grantees.  But 
as  that  rule  had  long  ago  been  abrogated  in  New  York,3 
that  difficulty  was  removed  and  John  Jackson  took 
merely  a  life  estate.  As  the  court  say :  "  I  concede  that 
as  a  mere  abrogation  of  the  former  rule,  declared  by 
the  courts  in  England,"   (the  Rule  in  Shelley's  Case) 


1  Matter  of  Wilcox,  194  N.  Y.  288. 

2  41  N.  Y.  66. 

31  R.  S.  725,  §  28;  Real  Prop.  L.,  §  54;  Brown  v.  Wadsworth,  168  N.  Y. 
225;  People's  Trust  Co.  v.  Flynn,  188  N.  Y.  385;  Webb  v.  Sweet,  187 
N.  Y.  172. 


§  469.]  CONSTRUCTION.  321 

*  *  *  "  the  effect  of  the  grant  would  be  to  give  John 
Jackson  an  estate  for  life  with  remainder  to  those  un- 
certain persons  who  might  be  his  heirs  at  his  death. 
And  this  remainder  would  be  a  contingent  remainder  at 
the  common  law,  because,  during  his  life,  no  person 
could  answer  that  designation;  and  not  alone  for  this 
reason,  but  because  it  could  not  be  averred  by  any  per- 
son that  he  would  be  the  heir  of  John  Jackson  at  the 
time  when  the  life  estate  of  the  latter  (the  present  es- 
tate), was  determined    * 


*  v 


§  469.  And  the  opinion  of  the  court,  per  Woodruff,  J., 
then  proceeds  as  follows  to  consider  whether  the  Re- 
vised Statutes,  in  their  description  of  vested  and  con- 
tingent future  estates,  have  not  effected  a  change  such 
as  would  render  the  remainder  in  question  vested  in- 
stead of  contingent.  "  It  is  not,  however,  in  my  judg- 
ment, profitable  nor  necessary  to  the  view  which  I  in- 
tended to  suggest,  that  I  should  pursue  the  consider- 
ation of  the  peculiar  case  created  by  the  grant  now  in 
question,  if  it  were  to  be  governed  by  the  refinements  of 
the  common  law,  under  the  influence  of  its  feudal  cus- 
toms, restrictions,  complications,  and  of  the  ingenuity 
and  learning  sometimes  employed  to  avoid  rather  than 
give  rational  effect  to  the  intention  of  the  parties.  It 
was  one  of  the  objects  of  our  Revised  Statutes  to  re- 
duce to  greater  simplicity  the  rules  governing  the 
taking,  holding  and  transmitting  of  real  estate,  and, 
especially,  to  favor  the  vesting  of  estates  and  the  alien- 
ability thereof.  *  *  *  If  there  '  is  a  person  in  being 
who  would  have  an  immediate  right  to  the  possession  of 
the  lands  upon  the  ceasing  of  the  precedent  estate,  then 
that  remainder  is  vested,'  within  the  terms  of  the  stat- 
ute. It  is  not  'a  person  who  now  lias  a  present  fixed 
right  of  future  possession  or  enjoyment,'  but  a  person 


322  CONSTRUCTION.  [CH.  XI. 

who  would  have  an  immediate  right  if  the  precedent  es- 
tate were  now  to  cease. 

§  470.  "  I  read  this  language  according  to  its  ordinary 
and  natural  signification,  and  if  you  can  point  to  a 
human  being  and  say  as  to  him,  '  that  man  or  that 
woman,  by  virtue  of  a  grant  of  a  remainder  would  have 
an  immediate  right  to  the  possession  of  certain  lands  if 
the  precedent  estate  of  another  therein  should  now 
cease,'  then  the  statute  says,  he  or  she  has  a  vested  re- 
mainder. It  was  argued  on  this  appeal,  that  definitions 
of  vested  and  contingent  remainders  in  adjudged  cases 
and  text-writers  have  not  been  successfully  attempted 
and  that  our  revisers  did  not  attempt  to  alter  the  law, 
or  do  more  than  describe  what  had  already  been  adjudged 
to  be  vested,  and  what  to  be  contingent.  In  my  opinion, 
they  have  defined  a  vested  remainder  in  terms  that  do 
clearly  avoid  much  of  the  uncertainty  in  which  the 
subject  was  before  involved,  and  in  such  terms  that  it 
is  now  true  that  if  there  be  a  person  in  being  of  whom  it 
can  be  positively  averred,  that  if  the  estate  for  life 
were  now  to  cease,  he  would  have  an  immediate  right  of 
possession,  he  has  a  vested  remainder,  and  notwith- 
standing subsequent  events  may  defeat  it,  the  operation 
of  the  statute  itself  is  to  make  them  subsequent  condi- 
tions. *  *  *  Without  enlarging  further,  the  stat- 
ute, rejecting  technical  expressions  and  phrases  hereto- 
fore employed,  meant  by  person,  just  what  it  expresses 
and  no  more.  '  When  there  is  a  person  in  being/  means 
when  you  can  point  to  a  human  being,  man,  woman,  or 
child ;  and  '  who  would  have  an  immediate  right  to  the 
possession  of  the  lands  upon  the  ceasing  of  the  preced- 
ent estate,'  means  that  if  you  can  point  to  a  man,  woman 
or  child,  who,  if  the  life  estate  should  now  cease,  would 
eo  instanti  et  ipso  facto  have  an  immediate  right  of  pos- 
session, then  the  remainder  is  vested,  and,  by  necessary 
consequence,  all  the  contingencies  which  may  operate  to 


§  473.]  CONSTRUCTION.  323 

defeat  the  right  of  possession,  are  to  operate  and  only  to 
operate  as  conditions  subsequent."  l 

§  471.  Lawrence  v.  Bayard?  is  a  case  which  the  court 
cite  in  Moore  V.  Littel,  to  show  that  their  view  of  the 
subject  was  not  novel.  There  certain  moneys  were, 
upon  the  death  of  A,  to  be  paid  to  the  then  surviving 
oldest  son  of  W.  It  was  held  that  during  A's  life,  and 
while  W  and  his  two  sons,  B  and  C,  were  also  alive,  B, 
who  was  the  oldest  son,  had  a  vested  remainder,  because, 
if  A  had  then  died  he  would  thereupon  prove  to  be  tin- 
oldest  then  surviving  son  of  TV. 

§  472.  Mead  v.  Mitchell?  is  also  cited  as  an  au- 
thority in  Moore  v.  Littel.  In  that  case  there  was  an 
estate  to  trustees  for  the  life  of  A,  and  after  her  death 
and  in  default  of  any  appointment  by  her  by  will,  to 
such  persons  of  A's  blood  as  would  have  inherited  from 
her  by  descent.  A  was  given  the  power  to  appoint  the 
remainder  to  such  persons  of  her  blood  as  she  mighl 
select.  She  had  two  children.  It  was  held  that  they 
took  a  vested  remainder  dining  her  life. 

§  473.  These  are  the  chief  authorities'   in    favor  of 


!In  the  previous  case  of  Sheridan  v.  House,  4  Abb.  Ct.  App.  Deo.  21s.  a 
majority  of  the  court  had  held,  in  construing  the  same  will,  that  tin- 
children  took  a  vested  remainder.  And  in  House  v.  Jackson,  no  X.  Y 
161  (see  also  Jackson  v.  Sheridan,  50  N.  Y.  CGO)  also  arising  out  of  the 
same  will,  the  case  of  Moore  v.  Littel  is  cited  and  followed,  and  the  court 
again  hold  that  the  interest  of  one  of  the  children  in  his  remainder,  v.-  1 
during  the  father's  life.  In  this  case  the  point  was  squarely  in  issue,  and 
was  essential  to  the  decision  reached,  which  was  concurred  in  by  all  the 
judges.  See  also  Jackson  v.  Little,  56  X.  Y.  108;  House  v.  McCormick, 
57  N.  Y.  310. 

2  7  Pai.  70. 

317N.  Y.  210. 

4See,  also,  dicta  in  Coster  v.  Lorillard,  14  Wend.  265,  802;  and  in  Rome 
Exchange  Bank  v.  Eames,  4  Abb.  Ct.   App.    Dec.  B8,   98;  also  Chism  v. 
Keith,  1  Hun,  589  (s.  c.  sub.  nom.  Chinn  v.  Keith.    I  T.  &  I     L26),   w 
Moore  v.  Littel  is  followed,  with  the  remark   by  the  court  :  "  If  the  ded- 


324  CONSTRUCTION.  [CH.  XI. 

the  theory  that  the  statutory  definition  is  to  be  read  in 
its  strict  and  literal  sense,  instead  of  being  regarded  as 
merely  perpetuating  the  former  line  of  distinction.1  We 
will  now  examine  them,  to  ascertain  their  weight. 

§  474.  First,  then  in  point  of  time,  came  Lawrence  V. 
Bayard.2  The  property  there  involved  was  personal 
property.  The  court  expressly  holds  in  that  case,  that 
the  decision  would  be  the  same  whether  the  remainder 
were  vested  or  contingent,  and  bases  its  decision  on 
principles  which,  as  the  court  say,  are  in  either  view, 
equally  applicable. 


sion  of  the  Court  of  Appeals  in  Moore  v.  Littel  is  to  be  taken  as  a  correct 
exposition  of  the  law,  the  devise  in  this  case,  to  '  the  heirs  of  the  body  of 
Mrs.  Keith  whom  she  shall  leave  her  surviving, 'created  a  vested  remainder 
in  fee  in  the  present  plaintiff,  and  her  brothers  and  sisters.  *  *  *  Such  is 
the  rule  of  law  laid  down  in  Moore  v.  Littel.  It  is  a  rule  of  property.  We 
have  no  alternative  but  to  follow  it,  whatever  may  be  our  own  views  of 
its  correctness."  See  also,  Lockman  v.  Reilley,  29  Hun,  434;  Drake  v. 
Lawrence,  19  Hun,  112;  2  Reeves,  Real  Property,  1156.  The  cases  of 
future  remainders  to  particular  persons  in  their  present  capacity,  as,  for 
instance,  to  the  "heirs"  of  A,  a  person  already  deceased,  or  to  a  designated 
and  existing  class,  subject  to  being  wholly  or  partially  divested  by  the 
happening  of  a  contingency  subsequent,  do  not  bear  upon  the  question 
under  discussion.  The  remainders  in  such  cases  are  vested,  and  so  they 
were  at  common  law.  The  distinction  is  that  in  them  the  future  devisees 
now  answer  to  the  description  by  which  they  are  to  take  in  remainder, 
and  so  the  presumption  of  postponement,  which  is  raised  by  designating 
them  as  "heirs"  of  a  living  person,  does  not  arise.  See,  also,  Scott  v. 
West,  63  Wis.  529,  570-1 ;  Matter  of  Brown,  93  N.  Y.  295  ;  Minot  v.  Minot, 
17  App.  Div.  521.  So  also,  both  at  common  law  and  under  the  Real  Prop- 
erty Law,  if  it  is  seen  that  testator  has  used  the  word  "heirs"  loosely,  to 
designate  now  living  individuals,  effect  will  be  given  to  his  intent,  Mont- 
ignani  v.  Blade,  145  N.Y.  Ill ;  Heard  v.  Horton,  1  Den.  168;  see  Campbell 
v.  Rawdon,  18  N.  Y.  412,  417.  And  the  same  rule  applies  in  construing 
deeds.  Heath  v.  Hewitt,  127  N.  Y.  166.  But  unless  the  intent  to  use  the 
word  in  an  unusual  or  loose  sense  appears,  it  must  be  held,  when  referring 
to  the  "heirs"  of  a  living  person,  to  mean  the  as  yet  unascertained  per- 
sons who  will  be  his  heirs  when  he  dies.  Cushman  v.  Horton,  59  N.  Y. 
149.     See  Lake  v.  Ascher,  132  N.  Y.  684;  Wallace  v.  Diehl,  202  N.  Y.  156. 

1  See  the  cases  cited  by  Professor  Reeves,  Real  Prop.,  Vol.  II.,  p.  1157. 

2  7  Pai.  70. 


§  475.]  CONSTRUCTION.  325 

§  475.  Next  came  Mead  v.  Alitchel,1  which  presented 
the  question  whether  a  purchaser  under  a  certain  parti 
tion  sale  should  be  compelled  to  complete  the  purchase. 
His  objections  arose  out  of  the  following  facts:  Testa 
trix  was  owner,  as  tenant  in  common  with  one  other,  of 
certain  real  property.  She  left  it,  as  already  stated, 
in  trust  for  the  life  of  her  niece,  A,  and  after  A's  death 
to  convey  the  same  to  such  persons  of  the  blood  of  A  as 
would  have  inherited  from  A  if  she  had  died  intestate. 
The  suit  for  partition  was  brought  during  A's  life,  and 
while  she  had  one  child  and  one  grandchild  living.  The 
trustee,  and  A,  and  the  child,  W,  and  grandchild,  C, 
were  made  parties.  The  purchaser  objected  that  the 
partition  suit  had  not  cut  off  the  rights  of  possible  yet- 
unborn  children  of  A.  The  question  for  the  court,  there- 
fore, was  whether  those  rights  had  been  cut  off.  This 
is  considered  from  two  points  of  view.  First  it  is  held 
that  unborn  heirs  were  "  represented  "  by  W  and  C,  the 
child  and  grandchild,  in  whom,  the  court  say,  the  re- 
mainder was  vested  subject  to  open.  But  over  this 
question  of  the  nature  of  the  estate  in  W  and  C  there 
appears  to  have  been  no  controversy.  The  objection 
raised  here  by  the  purchaser  seems  to  have  been  merely 
that,  admitting  the  remainder  to  be  defeasibly  vested. 
still  the  future  rights  of  unborn  children  were  not  cut 
off.  In  the  second  place,  the  court  then  proceed  <<»  say 
that  "  If  there  be  any  question  in  regard  to  the  conclu- 
sive effect  of  a  judgment  for  partition  or  sale  without 
the  aid  of  the  statute,  I  am  satisfied  that  with  such  aid 
there  can  be  none."  And  they  then  go  on  to  show 
that  the  proceedings  under  the  statute  were  sufficienl 
to  cut  off  all  rights  to  the  land  in  unborn  children. 
Here  the  nature  of  the  estate  in  W  and  C  plays  no 
part  whatever,  and  on  this  branch  of  the  argumenl  the 
court  chiefly  bases  the  decision.     The  statement    that 


M7  N.  Y.  210. 


326  CONSTRUCTION.  [CH.  XI. 

W  and  C  have  a  vested  remainder  is  not  called  for  by 
the  decision,  and  seems  to  have  been  conceded  without 
argument. 

§  476.  Next  came  the  cases  of  Sheridan  v.  House,1 
and  Moore  v.  Littel,2  the  grounds  of  the  decisions  in 
both  of  which  are  explained  in  the  opinion  of  the  latter, 
and  have  already  been  quoted.  The  only  question  in- 
volved was  whether  the  remainders  were  alienable  dur- 
ing the  life  of  the  tenant  of  the  precedent  estate.  And 
the  answer  did  not  depend  at  all  upon  the  vested  or 
contingent  nature  of  the  remainders,  for  they  were 
alienable  whether  vested  or  contingent.  The  court 
mention  this  fact,  and  after  finding  that  they  are  vested, 
they  proceed  to  say;  "If  the  preceding  reasoning  be 
wholly  fallacious,  and  be  deemed  to  give  interpretation 
to  the  statute  or  construction  to  the  law  which  is  un- 
sound, I  am  wholly  unable  to  see  how  the  result  to  the 
present  appellants  would  be  different."  And  they  then 
go  on  to  show  conclusively  that  the  remainders, 
though  contingent,  were  alienable.  Inasmuch,  there- 
fore, as  they  were  alienable  whether  vested  or  contin- 
gent, the  discussion  of  the  question  whether  in  reality 
they  were  contingent  or  vested  was  wholly  apart  from 
the  decision  of  the  case  and  cannot  be  looked  on  as 
binding.  Three  of  the  judges  recorded  their  dissent 
from  the  doctrine  that  the  remainders  were  vested.3 

§  477.  As  to  the  next  case,  House  v.  Jackson,4  the 
question  was  whether,  if  one  of  the  remaindermen  also 
obtained  the  life  estate  of  John,  the  union  of  the  two 
would  give  him  an  estate  of  inheritance  in  possession, 
such  that  his  wife's  dower  rio-ht  would  then  attach  dur- 


1  4  Abb.  Ct.  App.  Dec.  218. 

2  41  N.  Y.  66. 

3  See  also  6  Abb.  Law  J.  361. 

4  50  N.  Y.  161. 


§  480.]  CONSTRUCTION.  327 

ing  the  life  of  John.  This  would  not  be  the  result 
unless  the  remainder  were  a  vested  one.  The  court  sus- 
tained the  wife's  dower  right,  but  they  did  not  examine 
anew  the  question  whether  the  remainder  was  vested. 
They  only  say  on  this  point,  "  Moore  v.  Littel  holds  the 
estate  of  the  son,  prior  to  the  death  of  the  father  to  be 
a  vested  remainder."  The  same  will  and  the  same  per- 
sons were  under  consideration,  as  in  Moore  v.  Littel. 

§  478.  Having  now  examined  the  cases  supporting 
the  view  that  the  revision  effected  a  change  in  the  com- 
mon law  distinction  between  the  terms  vested  and  con- 
tingent, we  will  take  up  the  leading  authorities  that 
support  the  opposite  view,  and  will  consider  first  those 
going  to  show  that  no  such  change  was  intended,  and 
secondly  those  going  to  show  that  no  such  change  has  in 
fact  been  effected. 

§  479.  ( 1 )  The  Revisers,  in  their  Notes,  nowhere  sug- 
gest any  intention  of  drawing  a  new  line  of  distinction. 
On  the  contrary,  they  make  an  explanatory  statement 
which  shows  that  they  did  not  intend  to  do  so.  For 
they  say :  "  As  where  an  estate  is  given  to  A  for  life, 
and  if  he  have  any  issue  living  at  his  death,  then  to 
such  issue  in  fee ;  but  if  he  die  without  such  issue,  then 
to  B  in  fee.  Here  the  remainders  to  the  issue  and  to 
B  are  both  contingent,     *     *     *.* 

§  480.  (2)  The  statute  declares  the  two  definitions 
complementary.  A  future  estate,  it  says,  is  either 
vested  or  contingent.  But  under  the  general  rule  of 
Moore  v.  Littel,  either  the  two  must  overlap,  so  as  to 
make  some  estates  both  vested  and  contingent,  or  else, 
to  avoid  that  result,  a  strained  construction  must  be 
put  upon  the  definition  of  contingent  remainders.  We 
will  examine  these  alternatives. 


Italics  not  in  original. 


328  CONSTRUCTION.  [CH.  XL 

§  481.  (a)  Chief  Justice  Savage,  in  discussing  the 
distinction  between  vested  and  contingent  remainders,1 
though  it  was  "  not  a  controlling  fact  in  the  case  "  and 
"  did  not  determine  the  rights  of  the  parties,"  takes  the 
view  afterwards  supported  by  Judge  Woodruff,  and 
says :  "  By  the  statute  definition  this  is  a  vested  remain- 
der, because  there  are  persons  in  being  who  would  have 
an  immediate  right  to  the  possession  upon  the  ceasing 
of  the  precedent  estate,  that  is,  there  are  persons  in 
being  who  would  take  the  possession  of  the  estate  were 
the  precedent  estate  now  to  cease.  Should  the  twelve 
nephews  and  nieces  all  die  this  day,  there  are  persons 
now  in  being  who  would  be  entitled  to  the  remainder 
under  the  devise.  This  remainder  is  also  contingent, 
according  to  the  statute  definition, — the  event  upon 
which  it  is  limited  to  take  effect  is  certain,  to  wit,  the 
death  of  the  twelve  nephews  and  nieces;  but  the  per- 
sons who  are  to  take  are  uncertain,  depending  upon  the 
fact  of  their  being  in  existence  at  the  death  of  the  last 
of  the  twelve."  Apart  from  the  particular  remainder 
in  that  case  which  gave  rise  to  these  remarks,  it  is  evi- 
dent that  wherever,  under  the  application  of  the  rule 
in  Moore  V.  Littel,  a  contingent  remainder  would  be 
turned  into  a  vested  remainder,  it  must  also  remain 
contingent.  For  the  peculiar  feature  of  this  rule  is 
called  out  only  in  cases  where  it  is  uncertain  who  (if 
any  one)  will  ultimately  take  in  possession,  but  certain 
who  would  take  if  the  precedent  estate  were  to  termi- 
nate just  now.  This  certainty  for  the  present  moment 
satisfies  this  rule  and  makes  the  remainder  vested;  but 
the  accompanying  uncertainty  who  (if  any  one)  will 
take  in  possession  if  vesting  is  deferred, — this  uncer- 
tainty satisfies  the  statutory  definition  of  contingent  re- 
mainders, and  makes  it  contingent.     But  it  is  hardly 


Coster  v.  Lorillard,  14  Wend.  265,  302,  310,  311. 


§  482.]  CONSTRUCTION.  329 

to  be  supposed  that  the  Legislature  intended  the  defi- 
nitions to  overlap  in  this  way,  especially  in  view  of  the 
express  provision  that  future  estates  are  either  vested 
or  contingent. 


§  482.  (b)  The  other  alternative  is  to  put  what 
appears  to  be  a  strained  construction  upon  the  statu- 
tory definition  of  contingent  remainders.  It  says  that 
a  remainder  is  contingent  "  while  the  person  to  whom 
*  *  *  it  is  limited  to  take  effect,  remains  uncertain." 
It  is  suggested,  in  support  of  the  rule  of  Moore  v.  TAttel, 
that  this  definition  does  not  refer  to  a  case  where  the 
persons  in  whom  the  remainder  would  now  vest,  if  the 
precedent  estate  were  now  to  terminate,  are  certain, 
even  though  it  is  uncertain  who  will  really  take  if  its 
termination  be  postponed  to  the  future.  According  to 
this  view  the  statute  is  to  be  read  as  if  it  said  "  while 
the  person  in  whom  it  would  take  effect  if  the  preced- 
ent estate  were  now  to  terminate,  is  uncertain."  This 
appears  to  be  utterly  at  variance  with  the  actual  form 
of  expression  employed.  Great  light  is  thrown  on  this 
point,  and  on  our  whole  subject  of  discussion,  by  the 
fact  that  while  the  statutory  definition  of  vested  re- 
mainders— when  taken  by  itself,  disconnected  from  the 
context  and  from  its  history — is,  perhaps,  grammati- 
cally open  to  two  constructions,  the  statutory  definition 
of  contingent  remainders  is  practically  identical  with 
that  laid  down  by  Blackstone: 

Blackstonc,  2  Comm.  169. 

"  Contingent  *  *  *  remainders  are  where  the 
estate  in  remainder  is  limited  to  take  effect  either  to  a 
dubious  and  uncertain  person,  or  upon  a  dubious  and 
uncertain  event." 


330  CONSTRUCTION.  [CH.  XI. 

Real  Property  Law,  §  40. 

A  remainder  "  is  contingent  while  the  person  to  whom 
or  the  event  on  which  it  is  limited  to  take  effect  re- 
mains uncertain." 

§  483.  The  Revised  Statutes  themselves  employ  the 
term  "  contingent  remainder  "  in  a  sense  directly  op- 
posed to  that  of  the  rule  in  Moore  v.  Littel.  For  1  R.  S. 
722,  §  4,1  provides  that  a  remainder  in  fee,  limited  on 
what  would  have  been  an  estate  tail  under  the  early 
law,  shall  be  valid  as  a  "  contingent  limitation  on  a 
fee  "  and  shall  vest  in  possession,  on  the  death  of  the 
first  taker,  without  issue  living  at  the  time  of  such 
death.  Now  pending  the  life  of  the  first  taker,  if  at 
any  given  time  he  had  no  issue  then  living,  the  rule  of 
Moore  v.  Littel  would  give  the  ultimate  remainderman 
a  remainder  vested,  subject  to  defeat.  But  the  statute 
expressly  makes  it  contingent. 

§  484.  (3)  The  form  of  definition  adopted  in  the  Re- 
vision has  frequently  been  employed  in  substance,  both 
before  and  since  its  adoption  by  the  Revisers,  as  a  cor- 
rect statement  of  the  common  law  distinction  between 
the  terms  vested  and  contingent.  Thus  Fearne,  in  de- 
scribing vested  remainders,  attributes  to  them  as  a  dis- 
tinguishing characteristic  the  present  capacity  of  tak- 
ing effect  in  possession  if  the  possession  were  to  become 
vacant.2  So  Challis 3  says  that  "  an  estate  is  said, 
though  not  vested  in  possession,  to  be  vested  in  interest 
in  a  given  person,  when  that  person  would  be  entitled, 
by  virtue  of  it,  to  the  actual  possession  of  the  lands,  if 
the  estate  should  become  the  estate  in  possession,  by 


1  Now  Real  Prop.  L.,  §  32. 

5  Fearne  on  Contingent  Remainders  (10th.  ed.),  215-6;  also  Greenleafs 
Cruise,  I,  712.  Jickling's  Analogy,  265 ;  Lalor  on  Real  Property,  66. 
3  Real  Property,  56. 


2  484.]  CONSTRUCTION.  331 

the  determination  of  all  the  precedent  estates."  So, 
also,  Mr.  Preston,  in  his  "Abstracts  of  Title,"  says,1 
"  The  criterion  and  distinguishing  feature  of  a  Tested 
remainder  is,  that  it  is  capable  of  taking  effect  in  posses- 
sion immediately,  if  the  particular  estates  were  deter- 
mined." And  Mr.  Williams  has  been  charged,  by  good 
authority,  with  introducing  into  his  explanation  of 
common  law  vested  remainders,  in  his  work  on  Real 
Property,  the  peculiarity  attributed  to  the  New  York 
statute,2  although  nothing,  of  course,  can  be  more  cer- 
tain than  that  Mr.  Williams  intended  to  state  the  com- 
mon law  rule  with  perfect  accuracy.  Chancellor  Kent, 
in  his  Commentaries,3  adopts  as  his  general  and  only 
definition  of  vested  remainders,  the  definition  from  the 
Revised  Statutes,  and  goes  on  to  say :  "  The  definition 
of  a  vested  remainder  in  the  New  York  Revised  Stat- 
utes appears  to   be  accurately  and  fully  expressed." 

Mr.  Washburn,  in  his  treatise  on  Real  Property,4  calls 
attention  in  one  of  his  own  notes  (4th  ed.)  to  the  de- 
cision in  Moore  v.  Littel  as  a  "  remarkable "  one, 
"  where  it  was  held  that  a  grant  to  A  for  life,  remainder 
to  his  heirs,  was  a  vested  remainder.  Three,  however, 
of  the  court  held,  what  is  regarded  by  most  other  courts 
as  law — that  it  was  a  contingent  one."  The  editors  of 
the  fifth  edition  add:  "In  Hennessy  v.  Patterson,5  the 
case  of  Moore  v.  Littel  is  referred  to  and  explained,  as 
in  reality  deciding  only  that  under  the  Revise  1  Statutes 
of  New  York  the  interest  of  the  heirs  in  the  contingent 
remainder  was  alienable." 

But  whatever  may  have  been  the  original  purpose, 
it  remains  to  be  considered  whether  the  cases  must  be 


i  Vol.  II,  p.  113. 

2  Judge  Holmes'  note,  4  Kent,  Comin.  (12th.  Ed.)  203,  note. 

3  4  Kent,  202. 

4  II,  p.  229. 

8  Infra,  §  486. 


332  CONSTRUCTION.  [CH.  XI. 

taken  to  have  adopted  and  established  the  construction 
advocated  in  Moore  v.  Littel. 

§  485.  Carmichael  v.  Carmichael.1  Devise  to  testa- 
tor's wife  for  life,  and  from  and  after  her  decease  to 
testator's  children  who  might  "  then  be  living."  The 
court  held  that  "  the  estate  does  not  vest  in  remainder 
until  her  (the  widow's)  death,  and  then  it  vests  only 
in  those  children  who  shall  be  living  at  the  time  of  her 
death."  2 

§  486.  Hennessy  v.  Patterson.3  Here  the  testator, 
after  providing  for  his  widow,  and  for  his  daughter  Mar- 
garet for  her  life,  added :  "  I  wish  and  will,  that  should 
my  said  daughter  Margaret  die  without  leaving  any 
issue,  then  the  said  property  shall  be  left  to  my  nephew 
John  Foley."  The  widow  died.  Margaret  and  Foley 
were  left  surviving.  Margaret  had  no  children.  Dur- 
ing Margaret's  life,  therefore,  Foley  was  a  "  human 
being  "  who,  if  Margaret  had  then  died,  would  at  once 
have  taken  the  future  estate  in  possession.  Under  the 
general  principle  of  the  rule  laid  down  in  Moore  v. 
Littel,  Foley's  estate  would  have  been  vested  during 
Margaret's  life,  and  while  she  had  no  children.  But 
in  order  to  reach  this  conclusion  it  would  be  again 
necessary  to  disregard  the  fact  that  the  future  estate 
was  given  to  him  only  in  connection  with,  and  upon,  the 
death  of  Margaret  without  issue.  Here  the  common 
law  distinction,  and  the  distinction  in  Moore  v.  Littel 
were  in  direct  conflict,  and  the  court  follow  the  former, 
and  hold  the  future  estate  in  Foley  contingent  until  it 
should  be  seen  whether  Margaret  died  without  issue. 
Foley  died  first,  and  his  right  to  the  contingent  future 

1  1  Abb.  Ct.  App.  Dec.  309,  4  Keyes,  346. 

2  See  also  In  re  Ryder,  11  Pai.  185;  and  People's  Trust  Co.  v.  Flynn,  188 
N.  Y.  385,  394. 

»  85  N.  Y.  91. 


§  487.]  CONSTRUCTION.  333 

estate,  not  depending  on  the  continuance  of  his  per- 
sonal life  for  its  existence,  descended  to  his  heirs  as 
such,  and,  upon  Margaret's  death  without  issue,  vested 
in  them  in  possession.  And  the  court  say :  "  *  *  * 
the  rule  stated  in  Moore  v.  Littel  by  Judge  Woodruff, 
that  where  the  same  event  in  this  case  the  death  of 
Margaret,  [without  issue],  at  the  same  time,  eo  instant i. 
terminated  the  precedent  estate,  and  settled  the  con- 
tingency, the  remainder  was  vested,  *  *  *  was 
said  of  a  remainder  to  the  heirs  of  one  living,  and  we 
think  does  not  fairly  apply  to  the  case  before  us.  And 
besides,  the  doctrine  was  not  assented  to  by  three  of 
the  judges,  and  the  case  was  really  decided  upon  the 
ground  *  *  *  that  the  remainder  was  contingent, 
but  nevertheless  an  expectant  estate,  as  defined  by  the 
Revised  Statutes,  and,  as  such,  alienable."  x 

§  487.  In  the  case  just  discussed,  it  will  be  notin ■«! 
that  the  facts  came  exactly  within  the  terms  of  the  gen- 
eral rule  laid  down  by  Judge  Woodruff,  namely,  there 
was  a  person  in  existence  whom  one  could  point  to  and 
say,  "  there  is  a  man,  or  there  is  a  woman,  who,  if  the 
precedent,  or  the  intermediate,  estate  were  now  to 
terminate,  would  at  once  take  the  remainder  in  posses- 
sion." But  the  court  hold,  in  Hcnnessy  v.  Patterson, 
that  that  was  not  enough.  It  is  true  that  in  Moore  v. 
Littel,2  the  relation  borne  bv  the  remainderman  to  the 
life  tenant  was  not  the  same  as  that  borne,  in  Hennessy 
v.  Patterson?  by  the  future  tenant  to  the  person  upon 
whose  life  the  precedent  estate  depended.  In  the  former 
case  the  death  of  John  Jackson  would  have  a  double 
effect,  terminating  the  precedent  estate  and  also  im- 
parting to  his  then  living  children  the  required  capac- 

1  See  Griffin  v.  Shepard,  124  N.  Y.  70,  76;   Peterson    v.  DeBaun.  86 
App.  Div.  259. 

2  41  N.  Y.  66. 

3  85  N.  Y.  91. 


334  CONSTRUCTION.  [CH.  XI. 

ity  as  his  "  heirs."  In  the  other  case,  however,  the  ex- 
istence of  a  collateral  contingency  which  must  happen 
before  vesting,  consisted  not  in  the  present  lack  of  the 
required  capacity  in  Foley,  for  he  was  specially  identi- 
fied by  name  in  the  will.  It  consisted,  instead,  in  the 
possible  death  without  issue  of  a  life  tenant  now  alive 
and  childless. 

§  488.  There  are  these  distinctions  between  the  facts 
of  the  two  cases.  But  these  distinctions  were  not  such 
as  to  create,  at  the  common  law,  any  difference  in  the 
treatment  of  the  two  cases;  and  the  statutory  defini- 
tions contain  nothing  to  suggest  one  construction  in 
the  one  case  and  another  in  the  other.  Nor  did  Judge 
Woodruff  hold  that  the  particular  relationship  existing 
in  Moore  v.  Littel  between  the  life-tenant  and  the  re- 
mainderman created  a  situation  calling  for  any  differ- 
ent construction  of  the  statutory  definitions  from  that 
applicable  to  all  cases  whatever.  It  is  also  true  that 
the  event  upon  which  vesting  in  possession  was  condi- 
tioned in  the  former  case,  the  death  of  John,  was  one 
certain  to  happen ;  while  in  the  latter  case  the  event, — 
the  death  of  Margaret  without  issue, — was  one  which 
might  or  might  not  happen.  But  the  court,  in  Hennessy 
v.  Patterson,1  did  not  allude  to  this  distinction,  or  base 
any  assertion  of  difference  on  it.  The  statute  lays 
down  a  general  distinction  between  vested  and  contin- 
gent estates,  and  whichever  meaning  we  give  to  it  is 
applicable  to  all  cases.  If  it  is  to  be  taken  literally,  as 
in  Moore  V.  Littel,  then  its  literal  meaning  appears 
equally  applicable  in  both  the  cases  cited.  If  such  lit- 
eral meaning  is  not  given  it  in  the  Hennessy  case,  it 
appears  to  be  inapplicable  anywhere.  The  Court  of 
Appeals,  in  a  case  where  there  was  a  man  who  could 
be  pointed  out  as  certain  to  take  the  future  estate  in 


1  85  N.  Y.  91. 


§  489.]  CONSTRUCTION.  335 

possession  if  the  intermediate  estate  should  now  termi- 
nate, holds  that  nevertheless  the  future  estate  is  not 
vested  but  contingent.  And  though  it  calls  attention  to 
a  distinction  between  the  case  in  hand  and  the  Moore 
case  it  wholly  discredits  the  authority  of  the  latter  on 
the  point  under  discussion,  not  only  by  removing  the  en- 
tire foundation  on  which  it  is  based,  but  by  calling 
attention  to  the  fact  that  the  Moore  case  really  decided 
that  the  remainder  was  contingent.1 

§  489.  Hall  v.  La  France  Fire  Engine  Co.2  Grant  to 
A  for  life,  "  and  at  her  death  to  the  heir  or  heirs  of  her 
body  her  surviving."  When  the  deed  was  delivered,  A 
had  one  child  living.  Under  Judge  Woodruff's  defini- 
tion the  remainder  would  have  vested  in  that  child,  sub- 
ject to  being  divested  by  its  death  during  A's  life.  In- 
stead, the  court  held  that  it  did  not  vest  at  all,  but  was 


1  It  lias  apparently  been  thought  that  Purdy  v.  Ilayt,  92  N.  Y.  44fi, 
had  some  bearing  on  the  question  under  discussion.  Gray,  Perpetuities, 
§107,  note  4.  The  facts  in  that  case  showed  three  successive  lif'  estates  to 
J,  C  and  E,  followed  by  a  remainder  to  such  children  as  E,  the  third  life- 
tenant,  might  leave  surviving  her.  Under  the  statute  concernini;  su< 
sive  life-estates,  Chap.  VI,  the  estate  to  E  was  cut  off .  and  the  question  was 
whether  the  remainder  to  E's  children  could  be  accelerated  and  take  effect 
in  possession  at  the  end  of  the  second  life-estate.  Now  the  answer 
depended  on  whether  the  ultimate  remainder  was  vested  or  contingent  :  and 
it  was  found  to  be  contingent.  The  case  might  at  first  sight  appear  to  be 
an  authority  in  line  with  Hennessy  v.  Patterson.  But  it  i^  to  1m-  noticed 
in  the  first  place  that  there  was  nothing  to  show  thai  E  had  any  childn  a, 
until  after  the  close  of  the  second  life-estate.  So  that  absence  <>f  remainder- 
men at  that  time  would  necessarily  have  rendered  the  ultimate  remainder 
contingent,  even  if  there  had  been  no  other  cause.  In  the  second  place, 
inasmuch  as  the  life-estate  to  E  had  been  cut  off,  her  death  thereby  )<>si  all 
connection  with  the  duration  or  termination  of  the  life  estates.  So  that  if.T 
and  C  had  both  died,  and  thus  terminated  the  precedent  estate,  any  chil- 
dren of  E  then  living  could  not  have  taken  their  remainder  in  possi  -ion. 
Her  death  constituted  a  purely  collateral  condition  precedent,  for  the  hap- 
pening of  which  her  children,  had  she  had  any.  would  have  been  obliged, 
under  the  terms  of  the  instrument,  to  wait,  even  though  the  precedent  r^tat^ 
had  terminated.  The  case  is  thus  seen  to  have  no  bearing  on  the  rule  in 
Moore  v.  Littel. 

1  158  N.  Y.  570. 


336  CONSTRUCTION.  [CH.  XL 

contingent,  because  the  form  of  grant  to  such  of  the 
heirs  of  her  body  as  should  survive  her,  placed  a  con- 
tingency upon  the  remainder. 

§  490.  Matter  of  Crane.1  Bequest  in  trust  for  testa- 
tor's wife,  for  life,  and  upon  her  death  a  division  among 
designated  brothers  and  sisters  and  a  niece  (or  in  trust 
for  certain  of  them),  and  if  any  should  die  before  the 
widow's  death,  then  his  share  to  be  paid  to  others.  It 
was  held  that  the  gift  to  the  brothers  and  sisters  and 
the  niece,  was  contingent,  and  not  vested  subject  to 
being  divested.  And  yet  there  were  at  any  given  time 
persons  in  being  in  whom  the  property  would  have 
vested  in  possession  if  the  widow  had  then  died. 

§  491.  People's  Trust  Co.  v.  Flynn.2  Devise  in  trust 
for  two  designated  lives,  and  "  upon  the  death  "  of  those 
two  persons,  a  devise  in  remainder  to  several  designated 
persons  in  equal  shares.  It  was  held  that  the  remain- 
der in  the  shares  did  not  vest  in  the  respective  desig- 
nated remaindermen,  pending  the  trust,  but  continued 
contingent,  although  there  were  at  any  given  time  per- 
sons in  being  who  if  the  precedent  estate  were  to  cease 
by  the  falling  in  of  the  two  lives,  would  be  at  once 
entitled  to  take,  in  possession,  under  the  will. 

§  492.  Cushman  v.  Cushman.3  Bequest  in  trust  to 
pay  the  income  to  testator's  three  sons.  If  certain 
future  events  should  be  decided,  in  a  specified  manner, 
to  have  occurred,  in  respect  to  any  given  son,  the  trus- 
tees were  empowered  to  thereupon  pay  over  his  share 
to  him,  thus  ending  the  trust  estate  therein,  but  if  one 
of  the  sons  died  before  such  decision,  then  there  was  a 
gift  over  to  one  Paul.    It  was  held  that  the  future  gift 


1  164  N.  Y.  71. 

2 188  N.  Y.  385,  394. 

3  116  App.  Div.  763,  aff'd  191  N.  Y.  505. 


§  439.]  CONSTRUCTION.  337 

to  the  son  in  question  was  contingent  upon  a  favorable 
future  decision,  and  that  the  alternative  gift  over  to 
Paul  was  contingent  upon  the  death  of  the  son  before 
such  a  decision.  But  Paul  was,  under  Judge  Woodruffs 
rule,  a  person  in  being  who,  no  decision  having  been 
made,  was  at  any  given  time  ready  to  take  the  share 
in  possession  if  the  prior  trust  estate  therein  were  to 
be  then  ended  by  the  death  of  testator's  son. 

§  493.  Matter  of  Wilcox.1  Bequest  in  trust  for  testa- 
tor's daughter  Frances  for  life,  remainder  to  her  issue 
in  equal  shares,  subject  to  being  divested  as  to  each  by 
death  before  attaining  majority,  and  in  case  Frances 
should  leave  no  issue  which  should  attain  majority  then 
(among  other  provisions)  a  share  to  C.  In  view  of  the 
identity  of  the  principles  involved,  the  court  found  it 
convenient  to  discuss  the  case  on  the  same  basis  as  if 
real  property  had  been  involved,  and  referred  to  the 
statutes  relating  to  real  property.  Now  Frances  died, 
leaving  no  issue.  It  became  necessary,  however,  in 
determining  the  validity  of  the  testamentary  provisions, 
to  ascertain  what  estate  her  issue  would  have  taken 
if  she  had  left  issue,  and  what  estate  or  interest  in  thai 
event,  might  have  been  taken  by  C.  It  was  accordingly 
held  that  the  share  of  each  of  the  issue  would  have  been 
vested  subject,  for  one  thing,  to  the  gift  over  to  C  in 
case  of  the  death  of  all  the  issue  during  minority,  and 
as  C,  under  those  circumstances,  would  have  been  a 
person  in  whom  the  gift,  if  otherwise  valid,  would  have 
vested  immediately  in  case  of  the  death  of  all  the  issue 
during  minority,  his  interest  would,  under  Judge  Wood- 
ruff's rule,  also  be  vested.  The  court  held,  under  estab- 
lished principles,  that  the  remainder  to  C  was  contin- 
gent, and  cited  Hennessy  v.  Patterson,  supra.  The 
point  thus  passed  upon  was  directly  in  issue,  and  the 


1  194  N.  Y.  288. 


338  CONSTRUCTION.  [CH.  XI. 

decision  turned  on  the  invalidity  of  the  attempted  re- 
mainder to  C  because  it  might  have  been  contingent, 
during  a  term  not  duly  measured.  The  description  by 
the  court  of  the  gifts  to  C  as  "  remainders,"  has  been 
criticised  on  the  ground  that  the  gifts  to  the  issue  of 
Frances  were  in  fee  and  that  the  succeeding  ultimate 
gifts  are  in  derogation  of  them,  and  so  are  not  remain- 
ders at  all.  As  a  matter  of  common  law  this  is  true. 
But  by  Real  Property  Law,  §  50,  a  fee  may  now  be  lim- 
ited on  a  fee,  on  a  contingency  which,  if  it  should  occur, 
must  happen  within  the  "  statutory  period ; "  and  by 
§  53,  "  A  remainder  may  be  limited  on  a  contingency, 
which,  if  it  happens,  will  operate  to  abridge  or  determine 
the  precedent  estate;  *  *  *  ."  The  estate  in  ques- 
tion, therefore,  described  in  terms  of  real  property,  was 
a  true  modern  remainder. 

§  494.  Robinson  v  Martin.1  Devise  and  bequest  in 
trust  for  the  life  of  A,  the  son  of  testatrix,  and  upon  his 
death  to  her  "  unmarried  daughters."  At  the  making 
of  the  will  and  at  her  death,  five  of  her  daughters  were 
unmarried.  Thereafter  and  during  the  life  of  A,  three 
of  these  daughters  married,  and  thus  at  A's  death  there 
were  two  "  unmarried  daughters."  The  question  was 
whether  the  remainder  was  given  to  those  who  answered 
to  the  description  at  testator's  death,  or  to  those  who 
answered  to  it  at  A's  death.  It  was  held  that  the  latter 
were  intended.  It  seems  to  have  been  the  view  of  the 
majority  of  the  court  that  pending  A's  life  the  remain- 
der, instead  of  being  vested  subject  to  defeasance,  was 
contingent.  "  I  do  not  think  there  was  any  vesting  of 
the  remainder  in  the  son's  share  in  the  daughters  un- 
married at  the  death  of  the  testatrix."  2  And  yet  pend- 
ing A's  life  there  were  persons  in  being  who,  if  A  had 


1  200  N.  Y.  159. 
8  Page  167. 


§  497.]  CONSTRUCTION.  339 

then  died,  would  have  taken  the  estate,  and  under  the 
general  principle  laid  down  in  Moore  v.  Littel,  the  re- 
mainder would  necessarily  have  been  vested  subject  to 
being  divested. 

§  495.  In  addition  to  the  cases  just  discussed,  there 
are  numerous  decisions,  involving  the  same  question  as 
Moore  v.  Littel,1  though  on  other  forms  of  limitations, 
which  are  inconsistent  with  the  general  theory  of  statu- 
tory construction  there  announced.2 

§  496.  It  is  true,  as  to  some  of  the  cases  above  cited, 
that  the  issues  before  the  court  did  not  render  it  essen- 
tial to  decide  whether  the  given  remainder  was  contin- 
gent, or  was  defeasibly  vested,4  as  the  net  result  would 
have  been  the  same  in  either  view.6  And  this  also  is 
true  of  Moore  v.  Littel.6 

§  497.  From  the  cases  cited,  it  is  clear  that  the  gen- 
eral rule  of  Moore  v.  Littel  cannot  be  relied  on  as  the 
clue  for  guidance  through  the  labyrinth.  The  most  that 
could  be  said  for  it  is,  that  it  has  established  an  arbi- 
trary meaning  which  must  be  applied  to  the  particular 
form  of  a  grant  or  devise  "to  A  for  life,  remainder  to 
his  heirs."     Beyond  that,  it  is  impossible  to  reconcile 


1  41  N.  Y.  66. 

'McGillis  v.  McGillis,  154  N.  Y.  532,  540;  Roosa  v.  Harrington,  171 
N.  Y.  341,  353;  March  v.  March,  186  N.  Y.  99  ;  Lewisohn  v.  Henry.  179 
N.  Y.  352;  Paget  v.  Melcher,  156  N.  Y.  399  ;  Hillen  v.  Iselin,  144  N.  Y. 
365,  376  ;  Matter  of  Baer,  147  N.  Y.  344,  348;  Delafield  v.  Shipman,  103 
N.  Y.  463,  467;  see  the  discussion  in  2  Reeves  on  Real  Property  1 156  ;  I 
Columbia  Law  Review,  279,  347;  IX  Columbia  Law  Review,  587,  697. 

3  Matter  of  Baer,  147  N.  Y.  344. 

4  Denison  v.  Denison,  96  App.  Div.  418.  422,  aff'd  183  X.   Y.  505. 

8  Matter  of  Smith,  131  X.  Y.  239,  247;  Gilliam  v.  Guaranty  Trust  Co., 
186  N.  Y.  127,  132-3;  Paget  v.  Melcher,  156  X.  Y.  899;  Bisson  v.  W.  S. 
R.  R.  Co.,  143  N.  Y.  125;  Teed  v.  Morton,  60  X.  Y.  502;  Griffin  v.  Shep- 
ard,  124  N.  Y.  70,  76. 

6  41  N.  Y  66  ;  Dougherty  v.  Thompson,  167  X.  Y.  470:  Livingston  v. 
Greene,  52  N.  Y.  118.     Sec  §  152. 


340  CONSTRUCTION.  [CH.  XI. 

the  decisions  with  that  general  principle,  as  relating  to 
every  case  where  there  is  a  "  human  being,"  however 
described,  who  would  as  a  matter  of  fact  take  in  posses- 
sion under  the  instrument  if  the  precedent  estate  were 
now  to  cease.  There  is  no  such  arbitrary  rule.1  The 
principle  that  the  intent,  in  the  sense  already  discussed, 
is  controlling,  and  may  be  duly  indicated  by  employing 
terms  of  description  which  will  not  apply  to  any  one 
until  a  future  time,  still  exists.  Indeed,  even  as  to  the 
very  phrase  dealt  with  in  Moore  v.  Littel,  it  is  difficult 
to  see  how  the  courts  could  fasten  an  arbitrary  mean- 
ing on  it  irrespective  even  of  a  duly  indicated  intent  to 
the  contrary,  under  the  statute,  as  well  as  their  own 
established  principles,  requiring  them  to  give  effect  to 
the  duly  indicated  intent.  "  Where,  upon  inspection 
of  the  will  and  upon  a  consideration  of  relevant  facts 
and  circumstances,  an  intent  is  apparent,  all  rules  to 
the  contrary  must  yield;  provided  that  intent  does  not 
offend  against  public  policy,  or  some  positive  rule  of 
law."  2 

§  498.  The  rule  of  Moore  v.  Littel,  in  so  far  as  it  has 
any  vitality  at  all,  should  be,  and  it  is  believed  that  the 
cited  authorities  show  that  it  now  is,  treated  as  strictly 
confined,  at  the  best,  to  the  exact  form  of  words  there 
in  question,  and  even  as  to  that  form  is  restricted  to 
cases  where  there  is  no  other  indication  whatever  of 
intent,  outside  of  the  form  itself.  Apart  from  that 
rule,  however,  the  opinion  of  Judge  Woodruff  furnishes 
valuable  material  on  various  points. 

§  499.  And  the  general  adherence  to  the  common  law 


1  Carmichael  v.  Carmichael,  1  Abb.  Ct.  App.  Dec.  309;  Hennessy  v. 
Patterson,  85  N.  Y.  91;  Hall  v.  LaFrance  Fire  Engine  Co.,  158  N.  Y.  570; 
Matter  of  Crane,  164  N.  Y.  71 ;  Cushman  v.  Cushman,  116  App.  Div.  763, 
aff 'd  191  N.  Y.  505 ;  People's  Trust  Co.  v.  Flynn,  188  N.  Y.  385,  394 ; 
Matter  of  Wilcox,  194  N.  Y.  288;  and  other  cases  above  cited. 

J  Robinson  v.  Martin,  200  N.  Y.  159,  164. 


§  501.]  CONSTRUCTION.  341 

basis  of  distinction  is  often  shown  in  the  application 
of  further  rules,  adopted  as  an  aid  in  ascertaining  the 
intent,  and  frequently  resorted  to  in  questions  relating 
to  both  real,1  as  well  as  personal  property.  For  a  ^ift 
may  be  immediate,  and  only  the  time  of  enjoyment  post- 
poned, or  it  may  be  itself  future  or  contingent,  depend- 
ing, as  a  condition  precedent,  upon  the  arrival  of  the 
beneficiary  at  a  given  age,  or  surviving  some  other  per- 
son, or  the  like.2 

§  500.  Thus,  if  there  is  no  gift  but  by  a  direction  to 
executors  or  trustees  to  divide,  pay  or  convey  at  a 
future  time,  the  gift  is  contingent.3  In  such  a  case  it 
is  said  that  futurity  is  annexed  to  the  substance  of  the 
gift.4 

§  501.  But  this  rule  applies  only  where,  beyond  the 
direction  for  future  division,  there  are  no  words  and 
no  provisions  which  import  a  present  or  vested  gift,  or 
indicate  such  an  intent,5  and  is  confined  within  the 
limits  of  its  express  terms.6    And  if,  in  addition  to  the 


'Paget  v.  Melcher,  156  N.  Y.  399;  Matter  of  Baer,  147 N.  Y.  844; 
McGillis  v.  McGillis,  154  N.  Y.  532,  540;  Miller  v.  Gilbert,  144  N.  Y.  68; 
Matter  of  Seaman,  147  N.  Y.  69,  74. 

8  Everitt  v.  Everitt,  29  N.  Y.  39,  67. 

3  Shipman  v.  Rollins,  98  N.  Y.  811,  327;  Smith  v.  Edwards,  SS  X.  Y. 
92;  Greenland  v.  Waddell,  116  N.  Y.  234,  244;  Delafield  v.  Shipman.  103 
N.  Y.  463;  Drake  v.  Pell,  4  Edw.  Ch.  251,  268;  Leake  v.  Robinson,  2 
Merivale,  363,  385  et  seq. ;  Delaney  v.  McCormick,  88  N.  Y.  174,  188;  Her- 
zog  v.  Title  Guarantee  &  Trust  Co.,  177  N.  Y.  86,  99;  Mutter  of  Baer,  1  17 
N.  Y.  344;  Lewisohn  v.  Henry,  179  N.  Y.  352,  30':;  McGillis  v.  McGillis, 
154  N.  Y.  532,  541;  Rudd  v.  Cornell,  171  N.  Y.  114.  123;  Clark  v.  Cam- 
mann,  160  N.  Y.  315,  327;  Dougherty  v.  Thompson.  107  N.  Y.  -IT1:.  482  ; 
Schlereth  v.  Schlereth,  173  N.  Y.  444,  449;   Matter  of  Crane.  164  N.  V.  71. 

4  Everitt  v.   Everitt,  29  N.  Y.  39,  75;  Clark  v.  Cammann,  160  X.  Y. 

315  327 

'Manice  v.  Manice,  43  N.  Y.  303,  369;  Warner  v.  Durant,  70  ]  Y. 
133,  136;  see  Smith  v.  Edwards,  88  X.  Y.  92.  105  et  *  1 1  i  be!  v.  Wolf, 
113  N.  Y.  405,  412  et  seq. 

«  Smith  v.  Edwards,  88  X.  Y.  92,  105;  Steinway  v.  Steinway,  168  X.  V. 
183,  200;  Roosa  v.  Harrington,  171  X.  Y.  841,  851. 


342  CONSTRUCTION.  [CH.  XL 

direction  to  executors  or  trustees  to  pay  over,  divide  or 
distribute,  there  are  also  words  importing  a  gift,  the 
general  rule  does  not  govern.1 

§  502.  And  where  the  gift  is  absolute,  and  only  the 
time  of  payment  or  conveyance  postponed,  here  time, 
not  being  of  the  substance  of  the  gift,  but  relating  to 
the  payment  or  conveyance,  does  not  suspend  the  gift, 
but  merely  defers  possession.2 

§  503.  Under  this  latter  rule  there  are  two  classes  of 
cases  to  be  considered.  In  the  first  the  gift  is  vested  as 
a  remainder  and  is  preceded  by  a  temporary  gift  in  the 
same  property  to  another  person,  either  beneficially  or 
in  trust.  Here  the  actual  payment  or  division  is  post- 
poned merely  because  in  the  meantime  the  preceding 
legatee  or  devisee  is  entitled  to  the  income  or  the  enjoy- 
ment; in  such  cases  there  is  no  difficulty  in  recognizing 
the  vested  character  of  the  legacy  or  devise,  in  spite  of 
the  postponement  of  possession.3  The  rule  on  this  sub- 
ject has  been  stated  as  follows :  "  If  the  postponement 


1  Manice  v.  Manice,  43  N.  Y.  303,  369;  Traver  v.  Schell,  20  N.  Y.  89; 
Matter  of  Crane,  164  N.  Y.  71,  77. 

8  Goebel  v.  Wolf,  113  N.  Y.  405,  412;  Savage  v.  Burnham,  17  N.  Y. 
561,  575;  Bliven  v.  Seymour,  88  N.  Y.  469,  478;  Dougherty  v.  Thompson, 
167  N.  Y.  472,  493;  Matter  of  Gardner,  140  N.  Y.  122,  129;  Matter  of 
Seebeck,  140  N.  Y.  241,  246;  Bowditch  v.  Ayrault,  138  N.  Y.  222;  Matter 
of  Crane,  164  N.  Y.  71;  Schlereth  v.  Schlereth,  173  N.  Y.  444;  Matter  of 
Tienken,  131  N.  Y.  391;  Matter  of  Brown.  154  N.  Y.  313,  325;  Dimmick 
v.  Patterson,  142  N.  Y.  322;  Roosa  v.  Harrington,  171  N.  Y.  341;  Matter 
of  Brandreth,  169  N.  Y.  437;  Haug  v.  Schumacher,  166  N.  Y.  506;  Miller 
v.  Gilbert,  144  N.  Y.  68,  73;  Matter  of  Seaman,  147  N.  Y.  69,  74;  U.  S. 
Trust  Co.  v.  Wheeler,  73  App.  Div.  289,  aff'd  173  N.  Y.  631;  Matter  of 
Murphy,  144  N.  Y.  557.    See  Steinway  v.  Steinway,  163  N.  Y.  183,  198. 

3  Everitt  v.  Everitt,  29  N.  Y.  39,  75;  Goebel  v.  Wolf,  113  N.  Y.  405, 
412;  Gilman  v.  Reddington,  24  N.  Y.  9,  18;  Matter  of  Mahan,  98  N.  Y. 
372,  376;  Torrey  v.  Shaw,  3  Edw.  Ch.  355,  356;  Savage  v.  Burnham,  17 
N.  Y.  561,  575;  Meyer  v.  Cahen,  111  N.  Y.  270;  Wheeler  v.  Ruthven,  74 
N.  Y.  428;  Palmer  v.  Dunham,  52  Hun,  468,  aff'd  125  N.  Y.  68;  supra 
§127. 


§  506.]  CONSTRUCTION.  343 

of  the  payment  is  for  the  purpose  of  letting  in  an  inter- 
mediate estate,  then  the  interest  shall  be  deemed  vested 
at  the  death  of  the  testator  and  the  class  of  legatees  is 
to  be  determined  as  of  that  date,  for  futurity  is  qoI  an- 
nexed to  the  substance  of  the  gift."  1 

§  504.  In  the  other  class  of  cases  the  postponement  is 
to  occur  after  the  time  when  the  gift  in  question  is  to 
take  effect  in  enjoyment,  and  consists  merely  in  post- 
ponement of  the  actual  possession.2 

§  505.  "  Where  a  remainder  shall  be  limited  to  take 
effect  on  the  death  of  any  person  without  heirs,  or  heirs 
of  his  body,   or   without   issue,   the   words   'heirs'   or 


'  issue ' 

at  the  death  of  the  person  named  as  ancestor."  3 


issue '  shall  be  construed  to  mean  heirs  or  issue  living 


§  506.  Where  there  is  a  devise  in  fee,4  with  a  devise 
over  in  case  of  death,  or  death  without  issue,  or  child- 
less, either  to  survivors  or  to  substituted  devises,5  the 
"  death  "  and  "  survivorship  "  referred  to  are  presum- 
ably such  as  occur  during  the  life  of  the  testator  only.6 

1  Matter  of  Crane,  164  N.  Y.  71,  76;  Haug  v.  Schumacher,  166  N.  Y. 
506;  Matter  of  Embree,  9  App.  Div.  602,  aff'd  154  N.  Y.  778. 

2  Authorities  on  this  latter  point  are  cited  supra  §§  126-107. 

3  Real  Prop.  L.  §  48;  Ferris  v.  Gibson,  4  Edw.  Ch.  707;  Anderson  v. 
Jackson  16  Johns.  382;  Patterson  v.  Ellis,  11  Wend.  259;  Millerv.  Macomb, 
26  Wend.  229;  Cutter  v.  Doughty,  7  Hill,  305,  307;  Matter  of  Moore,  152 
N.  Y.  602;  2  Reeves  on  Real  Property,  §  955.  Effect  of  intent.  Miller  v. 
McBlain,  98  N.  Y.  517;  Matter  of  Truslow,  140  N.  Y.  599. 

4  Lyons  v.  Ostrander,  167  N.  Y.  135,  140;  Mullarky  v.  Sullivan,  136 
N.  Y.  227;  Fowler  v.  Ingersoll,  127  N.  Y.  472,  478;  Vandrrzd'  v.  Slim:'  r- 
land,  103  N.  Y.  47;  Matter  of  Baer,  147  N.  Y.  344;  Matter  of  X.  Y.  L.  &, 
W.  R.  R.  Co.,  105  N.  Y.  89,  93. 

5  Cases  above  cited. 

6  Kelly  v.  Kelly,  61   N.  Y.  47,  50;  Stevenson   v.  Lesley,  70  X.   Y.  512, 
515;  Livingston  v.  Greene,  52  N.  Y.  118  ;  Moore  v.  Lyons,  25  Wend.  119, 
123;  first  two  paragraphs  of  opinion  in  Matter  of  N.  Y.  L.  A  W.  R.  1-'.  I 
105  N.  Y.  89,  92;  Doe  dem.  Long  v.  Prigg,  8  15.   <£  C.  231;  VanCotl  v. 
Prentice,  104  N.  Y.45;  Quackenbos  v.  Kingsland,  102  X.  V.  128;  Eml 

v.  Sheldon,  68  N.  Y.  227;  Stokes  v.  Weston,  112  X.  Y.  433,  436;    Mattel 


344  CONSTRUCTION.  [CH.  XL 

But  the  intent  controls.1 

§  507.  The  rule  on  this  subject  is  sometimes  stated 
so  that  instead  of  including  the  case  of  death,  simply, 
it  seems  to  exclude  it,  thus :  "  Where  the  devise  or 
bequest  over  to  third  persons  is  not  dependent  upon  the 
event  of  death  simply,  but  upon  death  without  issue," 
etc.2  But  the  earlier  and  still  the  usual  form  of  state- 
ment includes,  and  even  lays  special  emphasis  on,  this 
very  instance  of  death  simply,  and  relies  on  it  for  the 
best  explanation  of  the  origin  of  the  rule.3  The  general 
rule  does  not  cover  cases  where  some  period  other  than 
that  of  testator's  lifetime  is  provided  by  the  will  as  the 
time  during  which  a  death  may  occur  and  still  have  the 
result  of  causing  a  devolution  of  title.  Thus,  where 
there  is  a  devise  to  A  for  life,  and  upon  his  death  then 
to  B.  in  fee,  the  death  referred  to  is  not  confined  to  such 
as  may  occur  during  testator's  lifetime.4  For  provi- 
sions having  a  bearing  on  forms  of  dispositions  not  in- 
frequently occurring  in  connection  with  questions  here 


of  Tompkins,  154  N.  Y.  634 ;  Matter  of  Disney,  190  N.  Y.  128 ;  Williams 
v.  Boul,  101  App.  Div.  593,  aff'd  184  N.  Y.  605;  Benson  v.  Corbin,  145 
N.  Y.  351;  Matter  of  Russell,  168  N.  Y.  169;  Washbon  v.  Cope,  144  N.  Y. 
287;  Matter  of  Tienken,  131  N.  Y.  391;  Smith  v.  Hull,  97  App.  Div.  228, 
aff'd.  184  N.  Y.  534;  Matter  of  Cramer,  170  N.  Y.  271;  Nelson  v.  Russell, 
135  N.  Y.  137. 

i  Vanderzee  v.  Slingerland,  103  N.  Y.  47,  56  ;  Kelso  v.  Lorillard,  85 
N.  Y.  177;  Matter  of  Denton,  137  N.  Y.  428;  Gibson  v.  Walker,  20  N.  Y. 
476,  483;  Davis  v.  Davis,  118  N.  Y.  411;  Guernsey  v.  Guernsey,  36  N.  Y. 
267;  Matter  of  Maben,  131  N.  Y.  255;  Matter  of  N.  Y.  L.  &  W.  R.  R.  Co., 
105  N.  Y.  89,  96;  Nellis  v.  Nellis,  99  N.  Y.  505,  514;  Miller  v.  McBlain, 
98  N.  Y.  517,  521,  where  see  also  respondent's  points,  p.  520;  Buel  v. 
Southwick,  70  N.  Y.  581;  Austin  v.  Oakes,  117  N.  Y.  577;  Williams  v. 
Jones,  166  N.  Y.  522,  539;  Colby  v.  Doty,  158  N.  Y.  323. 

2  Washbon  v.  Cope,  144  N.  Y.  287,  297. 

3  Vanderzee  v.  Slingerland,  103  N.  Y.  47,  53,  55;  Matter  of  N.  Y.  L.  & 
W.  R.  R.  Co.,  105  N.  Y.  89;  Stokes  v.  Weston,  142  N.  Y.  433,  436-7; 
Kelly  v.  Kelly,  61  N.  Y.  47. 

4  Chapman  v.  Moulton,  8  App.  Div.   64;  Matter  of  Denton,  137  N.  Y. 
428. 


§  509.]  CONSTRUCTION.  345 

discussed,  see  the  rule  and  the  statutory  provisions  in 
regard  to  lapse  of  legacies  or  devises,1  and  the  statute 
abolishing  estates  tail,  and  affecting  the  remainders.2 

§  508.  In  bequests  of  personal  property,  words  of 
survivorship  are  to  be  referred  to  the  time  for  distribu- 
tion and  enjoyment.3  But  this  may  not  represent  so 
much  any  difference  due  merely  to  the  kind  of  prop- 
erty, as  the  fact  that  in  the  case  referred  to  a  period 
other  than  testator's  death  is  set  forth  as  the  date  to 
which  words  of  survivorship  shall  refer.  The  rule 
applies  only  where  no  contrary  intent  appears.4  This 
proposition  must  also  be  read  in  the  light  of  tin-  rule 
that  the  law  favors  vesting  at  as  early  a  time  as  pos- 
sible, and  the  rules  for  determining  whether  or  not 
futurity  is  annexed  to  the  substance  of  a  gift. 

§  509.  Authority  may  be  found  for  the  proposition 
that  so  long  as  possession  may  be  defeated,  a  gill,  if  of 
personal  property,  is  said  to  be  contingent,  even  where, 
if  the  property  w^ere  realty,  it  would  be  regarded  as 
vested  subject  to  being  divested.5  At  most,  however,  the 
distinction  only  forms  the  basis  for  a  certain  presump- 
tion. A  future  interest  in  personal  property  is  not 
necessarily  contingent  because  defeasible.  It  may,  like 
a  future  estate  in  real  property,  be  vested  subject   to 


1  Decedent  Estate  Law,  §  29;  Langley  v.  Westchester  Trust  Co.,  180 
N.  Y.  326;  Matter  of  Tienken,  131  N.  Y.  391,  403;  Matter  of  Wells,  118 
N.  Y.  396. 

'Real  Prop.  L.  §  32;  Buel  v.  Southwick,  70  X.  Y.  581,  585;  Qoodell  v. 
Hibbard,  32  Mich.  47;  Nellis  v.  Nellis,  99  X.  Y.  505,  Ml. 

8  Teed  v.  Morton,  60  X.  *Y.  502,  506;  Vincent  v.  Newhouse,  88  X.  Y. 
505,  511;  Matter  of  Mahan,  98  X.  Y.  372,  376;  Delaney  v.  McConnick,  88 
N.  Y.  174,  183;  Yanderzee  v.  Slingeriand,  103  N.  Y.  47,  55;  Willetta  v. 
Willetts,  20  Abb.  N.  C.  471,  and  8.  c.  103  X.  Y.  650. 

4  Id. 

5See  Note  18  Abb.  X.  C.,p.  298;  Henderson  v.  Henderson,  118  N.  Y 
1,14. 


346  CONSTRUCTION.  [CH.  XL 

being  divested.1  Indeed,  the  rule  that  the  law  favors 
vesting  and  as  early  as  possible,  applies  to  legacies  as 
well  as  devises.  The  final  decision  in  given  cases  is 
based  on  the  intent.2 

§  510.  On  the  subject  of  present  or  postponed  vesting 
of  legacies,  the  authorities  may  also  be  arranged  in 
illustrative  groups  according  as  they  relate  to  the  reason 
why  the  payment  of  a  legacy  is  postponed,  as,  for  the 
"convenience  of  the  estate;"3  or  the  benefit  of  the 
legatee ; 4  or  to  the  presence  or  absence  of  provisions  re- 
lating to  payment  of  interest  pending  payment  of  prin- 
cipal ; 5  or  to  a  direction  to  divide  all  income  among 
legatees  as  constituting  an  out  and  out  gift  of  prin- 


1 U.  S.  Trust  Co.  v.  Wheeler,  73  App.  Div.  289,  aff'd  173  K  Y.  631 ; 
Dougherty  v.  Thompson,  167  N.  Y.  472,  487;  Matter  of  Brandreth,  169 
N.  Y.  437,  442;  Matter  of  Green,  153  N.  Y.  223;  Matter  of  Seaman,  147 
N.  Y.  69,  74.     See  also  the  cases  relating  to  gifts  to  a  "class." 

s  Bowditch  v.  Ayrault,  138  N.  Y.  222  and  662. 

Cases  of  death  before  division,  as  relating  to  time  appointed  for 
division  or  sale,  or  time  of  actual  division  or  sale.  Manice  v.  Manice,  43 
N.  Y.  303,  368,  373;  Finley  v.  Bent,  95  N.  Y.  364;  Henderson  v.  Hender- 
son, 113  N.  Y.  1,  13;  Underwood  v.  Curtis,  127  N.  Y.  523.  Civil  death. 
Avery  v.  Everett,  110  N.  Y.  317.  Death,  when  presumed,  Barson  v. 
Mulligan,  191  N.  Y.  306,  324. 

3  Robert  v.  Corning,  89  N.  Y.  225,  240,  241 ;  Van  Rensselaer  v.  Van 
Rensselaer,  113  N.  Y.  207,  213  (see  Burke  v.  Valentine,  52  Barb.  412,  425. ) 

4  Vernon  v.  Vernon,  53  N.  Y.  351. 

5Quade  v.  Bertsch,  65  App.  Div.  600,  aff'd  173  N.  Y.  615;  Warner  v. 
Durant,  76  N.  Y.  133;  Vanderpoel  v.  Loew,  112  N.  Y.  167,  181;  Robert 
v.  Corning,  89  N.  Y.  225,  240;  Patterson  v.  Ellis,  11  Wend.  259;  Tucker 
v.  Bishop,  16  N.  Y.  402,  405;  Smith  v.  Edwards,  88  N.  Y.  92,  106; 
Matter  of  Seebeck,  140  N.  Y.  241;  Zartman  v.  Ditmars,  37  App.  Div.  173; 
Locke  v.  F.  L.  &  T.  Co.,  140  N.  Y.  135,  146 ;  .Steinway  v.  Steinway,  163 
N.  Y.  183,  198;  Delafield  v.  Shipman,  103  N.  Y.  463,  467;  Matter  of 
Mahan,  98  N.  Y.  372;  Phelps'  Ex'r  v.  Pond,  23  N.  Y.  69,  81-2;  Matter  of 
Smith,  131  N.  Y.  239;  Hatcli  v.  Bassett,  52  N.  Y.  359;  Clancy  v.  O'Gara, 
4  Abb.  N.  C.  258,  273;  Manice  v.  Manice,  43  N.  Y.  303,  353,  365;  Dubois 
v.  Ray,  35  N.  Y.  162, 170;  Lovett  v.  Gillender,  35  N.  Y.  617,  621 ;  Thomas, 
Estates  Created  by  Will,  II,  pp.  1603-1605. 


§  510.]  CONSTRUCTION.  347 

cipal ; *  or  to  a  gift  over  of  corpus; 2  or  to  gift  of  a  fund 
not  to  come  into  existence  as  such  until  a  future  date. 


1  Hatch  v.  Bassett,  52  N.  Y.  359. 

2  Matter  of  Smith,   131  N.  Y.  239;  Matter  of  Tienken,  131  N.  Y.  391. 
3Shipman  v.   Rollins,   98  N.   Y.   311,  325;  Delaney  v.  McCormirk. 

N.  Y.  174,  183;  Vincent  v.  Newhouse,  83  N.  Y.  505,  511;  Manice  v. 
Manice,  43  N.  Y.  303,  368-9.  Also,  postponement  of  legacies  charged  on 
land;  Marsh  v.  Wheeler,  2  Edw.  Ch.  156,  163;  Loder  v.  Hatfield,  71 
N.  Y.  92,  100;  Snell  v.  Tuttle,  44  Hun,  324,  329;  or  personal  property. 
Wheeler  v.  Lester,  1  Bradf .  213. 


CHAPTER  XII. 


CONFLICT    OF    LAWS. 


§  511.  The  validity  of  a  disposition  of  real  property 
depends  on  the  law  of  the  place  where  the  land  lies.1 
The  validity  of  a  disposition  of  personal  property  de- 
pends on  the  law  of  the  owner's  domicile.2  The  follow- 
ing statements  deal  with  the  particular  classes  of  dis- 
position which  have  in  fact  proved  of  special  interest 
in  connection  with  the  main  topics  of  the  present 
volume. 

§  512.  In  the  leading  case  of  Chamberlain  v.  Cham- 
berlain^ the  following  propositions  were  laid  down: 

§  513.  (a)  "The  law  of  the  testator's  domicile  con- 
trols, as  to  the  formal  requisites  essential  to  the  validity 


1  Decedent  Estate  Law,  §  47;  Kerr  v.  Moon,  9  Wheat.  565,  570;  Lee  v. 
Tower,  124  N.  Y.  370;  Mount  v.  Tuttle,  183  N.  Y.  358,  365;  Trowbridge 
v.  Metcalf,  5  App.  Div.  318,  158  K  Y.  682.  See  St.  John  v.  Andrews 
Institute,  191  N.  Y.  254,  267;  White  v.  Howard,  46  N.  Y.  144;  Knox  v. 
Jones,  47  N.  Y.  389;  Hobson  v.  Hale,  95  N.  Y.  588;  Shields  v.  Klopf,  70 
Wis.  19 ;  Ford  v.  Ford,  80  Mich.  42 :  and  cases  below  cited. 

2  Decedent  Estate  Law,  §  47;  Dammert  v.  Osborn,  141  N.  Y.  564,  566; 
Ockerman  v.  Cross,  54  N.  Y.  29.  For  qualifications  and  exceptions,  see 
for  example  Decedent  Estate  Law,  §  47;  Warner  v.  Jaffray,  96  N.  Y.  248, 
254;  Dearing  v.  McKimmon  D.  &  H.  Co.,  165  N.  Y.  78,  87;  Security  Trust 
Co.  v.  Dodd,  Mead  &  Co.,  173  U.  S.  624,  628-9;  Chamberlain  v.  Chamber- 
lain, 43  N.  Y.  424,  433;  St.  John  v.  Andrews  Institute,  191  K  Y.  254,  267; 
Robb  v.  Washington  &  Jefferson  College,  185  N.  Y.  485,  496,  and  cases 
below  cited. 

Judicial  proceedings  in  another  State;  jurisdiction;  appointment  of 
trustee  to  execute  the  trusts  declared  in  a  will,  involves  adjudication  that 
there  is  a  trust.  Smith  v.  Central  Trust  Co.,  154  N.  Y.  333.  Compare 
Matter  of  Carpenter,  131  N.  Y.  86. 

3  43  N.  Y.  424. 

348 


§  515.]  CONFLICT  OF  LAWS.  349 

of  the  will  as  a  means  of  transmitting  property,  the 
capacity  of  the  testator,  and  the  construction  of  the 
instrument."  1 

§  514.  (b)  "If  within  the  lex  domicilii,  a  will  has 
all  the  forms  and  requisites  to  pass  the  title  to  person- 
alty, the  validity  of  particular  bequests  will  depend 
upon  the  law  of  the  domicile  of  the  legatee  and  of  the 
government  to  which  the  fund  is  by  the  terms  of  the 
will  to  be  transmitted  for  administration.''  2  In  Cross 
v.  U.  S.  T.  Co.,z  the  opinion,  after  quoting  the  foregoing 
statement  from  the  opinion  in  Chamberlain  v.  Cham- 
berlain,4 says :  "  When  the  learned  judge  said  that  the 
validity  of  a  particular  bequest  would  depend  upon  the 
law  of  the  domicile  of  the  legatee,  he  had  reference  to 
the  capacity  of  the  legatee  to  take,  and  that,  of  course, 
depended  upon  the  statutes  of  Pennsylvania.  *  *  * 
The  power  to  take  was  no  doubt  governed  by  the  law 
of  the  domicile  of  the  legatee,  as  neither  the  will  nor  the 
law  of  the  testator's  domicile  could  confer  this  power 
upon  a  corporation  of  another  State."  5 

§  515.  (c)  "If  the  legatee,  whether  a  natural  or  arti- 
ficial person,  and  whether  he  takes  in  his  own  right  or 
in  trust,  is  capable,  by  the  law  of  his  domicile,  to  take 
the  legacy  in  the  capacity  and  for  the  purposes  for  which 


1  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  482;  Hope  v.  Brewer,  136 
N.  Y.  126,  138.  See  also  Dammert  v.  Osborn,  140  N.  Y.  30;  141  N.  Y. 
564;  Cross  v.  U.  S.  Trust  Co.,  131  N.  Y.  330;  Smith  v.  Cent  ml  Trust  Co., 
154  N.  Y.  333;  Phelps'  Ex'r.  v.  Pond,  23  N.  Y.  69,  77;  Bascom  v.  Albert - 
son,  34  N.  Y.  584. 

2  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  433;  St.  John  v.  Andrews 
Institute,  191  N.  Y.  254;  Matter  of  Sturgis,  164  N.  Y.  485;  Hope  v. 
Brewer,  136  N.  Y.  126;  Matter  of  Huss,  126  N.  Y.  537.  See  Manice 
v.  Manice,  43  N.  Y.  303,  387-8. 

3  131  N.  Y.  330,  346. 

4  43  N.  Y.  424. 

6  See  Dammert  v.  Osborn,  140  N.  Y.  30;  141  N.  Y.  564;  Matter ..f  Huss, 

126  Y.  N.  537. 


350  CONFLICT  OF  LAWS.  [CH.  XII. 

it  is  given,  and  the  bequest  is  in  other  respects  valid, 
it  will  be  sustained,  irrespective  of  the  law  of  the  testa- 
tor's domicile."  1 

§  516.  (d)  The  rule  last  above  stated  is  "subject, 
however,  to  this  qualification,  that  if  the  law  of  the 
testator's  domicile,  in  terms,  forbid  bequests  for  any 
particular  purpose,  or  in  any  other  way  limit  the  capac- 
ity of  the  testator  in  the  disposal  of  his  property  by 
will,  a  gift  in  contravention  of  the  law  of  the  testator's 
domicile  would  be  void  everywhere."  2 

§  517.  (e)  "So  far  as  the  validity  of  bequests  de- 
pends upon  the  general  law  and  policy  of  the  State 
affecting  property  and  its  acquisition  generally,  and 
relating  to  its  accumulation,  and  a  suspension  of  own- 
ership and  the  power  of  alienation,  each  State  is  sover- 
eign as  to  all  property  within  its  territory,  whether 
real  or  personal."  3 

§  518.  (/)  "  It  is  no  part  of  the  policy  of  the  State  of 
New  York  to  interdict  perpetuities  or  gifts  in  mort- 
main, in  Pennsylvania  or  California.  Each  State  deter- 
mines those  matters  according  to  its  own  views  of  policy 


1  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  433 ;  St.  John  v.  Andrews 
Institute,  191  N.  Y.  254,  267 ;  Matter  of  Sturgis,  164  N.  Y.  485 ;  Hope  v. 
Brewer,  136  N.  Y.  126.  See  Dammert  v.  Osborn,  140  N.  Y.  30;  141  N.  Y. 
564;  Cross  v.  U.  S.  Trust  Co.,  131  N.  Y.  330;  Matter  of  Huss,  126  N.  Y. 
537.  A  similar  rule  applies  to  trust  deeds  or  declarations  of  trust.  Robb 
v.  Washington  &  Jefferson  College,  185  N.  Y.  485,  496. 

2  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  433.  See  Dammert  v. 
Osborn,  140  N.  Y.  30;  141  N.  Y.  564. 

8  Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  434.  See  Dammert  v. 
Osborn,  140  N.  Y.  30;  141  N.  Y.  564;  Hope  v.  Brewer,  136  N.  Y.  126; 
Cross  v.  U.  S.  Trust  Co.,  131  N.  Y.  330.  Inapplicability  of  the  New  York 
statute  forbidding  alienation  of  beneficial  interests  under  certain  trusts, 
to  the  case  of  trusts  created  and  carried  out  in  other  States  where  the 
common  law  principles  are  not  shown  to  have  been  changed.  First  Nat. 
Bank  v.  Nat.  Broadway  Bank,  156  N.  Y.  459.  See  Robb  v.  Washington 
Jefferson  College,  185  N.  Y.  485. 


§  519-]  CONFLICT  OF  LAWS.  351 

or  right,  and  no  other  State  has  any  interest  in  the 
question,  and  there  is  no  reason  why  the  courts  of  this 
State  should  follow  the  funds  bequeathed  to  the  Cen- 
tenary Fund  Society,  to  Pennsylvania,  to  see  whether 
they  will  be  there  administered  in  all  respects  in  strict 
harmony  with  our  policy  and  our  laws."  x 

§  519.  (g)  Whatever  may  be  the  law  in  another 
State,  "a  testator  domiciled  in  that  State  cannot  estab- 
lish by  bequests  of  personalty  to  citizens  or  corpora- 
tions of  this  State,  a  charity  or  trust  to  be  adminis- 
tered here  inconsistent  with  the  policy  of  the  laws  of 
this  State."  Such  was  the  principle  laid  down  in 
Chamberlain  v.  Chamberlain.2  But  "  in  Cross  v.  United 
States  Trust  Company,  131  N.  Y.  330,  we  held  that  a 
disposition  of  personal  property  by  will  and  in  the 
form  of  a  trust,  to  be  executed  in  this  State,  made  by  a 
person  domiciled  in  another  State,  valid  at  the  place  of 
the  domicile,  was  valid  here,  though  the  absolute  own- 
ership of  the  property  was  suspended  for  a  period 
longer  than  is  permitted  by  our  statute."3  "  The  gen- 
eral principle  that  a  disposition  of  personal  property, 
valid  at  the  domicile  of  the  owner,  is  valid  everywhere, 
is  of  universal  application.  *  *  *  There  is  no  law 
that  forbids  gifts  to  charity  here  by  testators  in  other 
countries,  or  that  requires  us  to  reject  the  gift  unless  it 
is  made,  in  all  respects,  in  conformity  with  our  local 
law.  There  is  no  public  policy  on  that  subject  except 
what  is  to  be  found  in  the  language  of  the  statute'5 


'Chamberlain  v.  Chamberlain,  43  N.  Y.  424,  434;  St.  John  v.  Andrews 
Institute,  191  N.  Y.,  254,  267;  Matter  of  Sturgis,  164  N.  Y.  485;  Bope  v. 
Brewer,  136  N.  Y.  126.  See  also  Cross  v.  U.  S.  Trust  Co.,  181  X.  Y.  880; 
Dammert  v.  Osborn,  140  N.  Y.  30;  141  N.  Y.  564;  Matter  of  IIuss,  126 
N.  Y.  537;  Despard  v.  Churchill,  53  N.  Y.  192. 

3  43  N.  Y.  424,  433. 

3  Hope  v.  Brewer,  136  N.  Y.  126,  139.  See  Despard  v.  Churchill.  68 
N.  Y.  192. 


352  CONFLICT  OF  LAWS.  [CH.  XII. 

(prohibiting  suspension  of  absolute  ownership  for  more 
than  two  lives  in  being. )  "  When  that  statute  was 
passed  it  was  not  within  the  legislative  purpose  to 
interdict  dispositions  made  in  other  countries  to  take 
effect  here.  *  *  *  The  policy  that  dictated  our 
statutes  against  perpetuities  and  accumulations  did  not 
anticipate  any  danger  from  abroad."  1 

§  520.  "  In  this  case  we  are  asked,  virtually,  to  *  *  * 
give  active  aid  and  assistance  in  the  enforcement  of  a 
trust,  which,  in  a  domestic  will,  would  doubtless  be 
void.  *  *  *  The  objection  to  this  relief,  which, 
under  ordinary  circumstances  might  be  formidable,  has 
been,  we  think,  greatly  obviated,  if  not  entirely  removed, 
by  the  legislation  "  creating  a  corporation  to  receive  the 
gift  for  the  objects  designated  in  the  will,  involving 
an  expression  of  the  legislative  power  that  the  gift 
should  be  received  and  so  administered,  thus  suspend- 
ing, or  pro  tanto  repealing,  all  legal  obstacles.  The 
legislature  had  the  power  to  do  this,  as  no  title  or  bene- 
ficiary interest  had  in  the  meantime  vested  under  the 
law  of  the  domicile,  in  heirs,  next  of  kin,  or  legatees.2 

§  521.  "  We  think  that  none  of  the  cases  referred  to 
hold  that  a  valid  disposition  of  property  at  the  domicile 
of  the  owner  may  be  declared  void  by  the  tribunals  of 
another  country,  where  the  law  is  different,  and  the  title 
adjudged  to  be  in  another.  *  *  *  The  fundamen- 
tal error  that  pervades  all  the  reasoning  of  the  learned 
counsel  on  this  subject  is  to  be  found  in  the  assumption 
that  the  courts  of  this  State  can  annul  a  disposition 
of  personal  property  in  a  foreign  will,  valid  by  the 


1  Dammert  v.  Osborn.  140  N.  Y.  30,  39,  41. 

2  Dammert  v.  Osborn,  140  N.  Y.  30,  41-42. 

In  such  a  case,  and  under  such  circumstances,  L.  1903,  Ch.  701,  relating 
to  charitable  uses,  see  supra,  Chapter  VIII,  also  has  an  application,  though 
enacted  subsequent  to  the  death  of  the  testator.  Dammert  v.  Osborn,  140 
N.  Y.  30,  41-2.     See  Despard  v.  Churchill,  53  K  Y.  192. 


§  522.]  CONFLICT  OF  LAWS.  353 

law  of  the  domicile,  and  distribute  the  property  to 
claimants  here,  contrary  to  the  terms  of  such  disposi- 
tion, as  interpreted  by  the  law  under  which  it  was  made 
No  controlling  authority  can  be  found  in  support  of 
such  a  proposition.  When  our  courts  cannot  give  effed 
to  testamentary  dispositions  of  property  in  foreign 
wills  without  violating  our  laws  or  public  policy,  the 
property  should  be  remitted  to  the  jurisdiction  of  the 
domicile  to  the  end  that  it  may  administer  its  own  laws. 
But  if  there  is  no  law  or  public  policy  here  that  forbids 
the  execution  of  the  purpose  that  the  testator  had  in 
view,  then  our  courts  will  give  effect  to  the  disposition 
according  to  the  law  under  which  it  was  made.  We  are 
still  of  the  opinion  that  the  legislature  intended  to  and 
did  remove  all  these  objections,  and  so  changed  our  laws 
and  public  policy,  so  far  as  they  were  ever  in  the  way. 
with  respect  to  this  particular  bequest,  as  to  permit,  if 
not  require,  our  courts  to  give  effect  to  the  testator's 
purpose."  1 

§  522.  (h)  "A  gift  by  will  of  a  citizen  of  this  State 
to  a  charity,  or  upon  a  trust  to  be  administered  in  a 
sister  State,  which  would  be  lawful  in  this  State,  the 
domicile  of  the  donor,  would  not  be  sustained,  if  it  was 
not  in  accordance  with  the  laws  of  the  State  in  which 
the  fund  was  to  be  administered."2  But,  "We  are  of 
opinion  that  the  validity  of  a  gift  or  trust  under  such 
circumstances  depends  on  the  extent  to  which  it  is  nec- 
essary that  the  administration  should  be  had  in  the 
foreign  jurisdiction."  3 


1  Dammert  v.  Osborn,  141  N.  Y.  564,  568.    See  Despard  v.  Churchill.  53 

N.  Y.  192. 

2  Chamberlain  v.  Chamberlain,  43  N.  Y.  434,  433;  Robb  v.  Washington 

&  Jefferson  College,  185  N.  Y.  485,  496-7. 

8  Mount  v.  Tuttle,  183  N.  Y.  358,  864,     Bee  Dammert  v.  Osborn,  140 
N.  Y.  30;  141  N.  Y.  564;  Cross  v.  U.  B.  Trust  Co.,  181  N.  Y.  880;  1! 
v.  Brewer,  136  N.  Y.  126;  Despard  v.  Churchill,  53  N.  Y.  192. 


APPENDIX. 

Michigan,  Minnesota  and  Wisconsin. 

§  523.  In  these  States  the  general  statutory  scheme 
in  relation  to  suspension  of  the  absolute  power  of  alien- 
ation of  real  property,  its  nature  and  test,  and  the 
length  of  its  maximum  authorized  "  statutory  period,"  is 
in  most  particulars  the  same  or  nearly  the  same,  as 
that  of  New  York,  with  certain  exceptions.  The  princi- 
pal statutory  provisions  and  authorities  indicating  the 
general  lines  of  the  scheme  are  given  in  the  note  below.1 


1  The  statutory  references  are  confined  to  the  general  revisions 
or  compilations  mentioned  below. 

Michigan:  Compiled  Laws  1897,  Estates  in  Real  Prop.,  §§  8783- 
8828;  Uses  and  Trusts,  §§  8829-8855;  Powers,  §§  8856-8917. 
Mclrnerny  v.  Haase,  163  Mich.  364;  Root  v.  Snyder,  161  Mich.  200; 
Mandlebaum  v.  McDonell,  29  Mich.  78;  Fitz  Gerald  v.  City  of  Big 
Rapids,  123  Mich.  281;  Niles  v.  Mason,  126  Mich.  482;  Foster  v. 
Stevens,  146  Mich.  131;  Farrand  v.  Petit,  84  Mich.  671;  St.  Amour 
v.  Rivard,  2  Mich.  294;  Trufant  v.  Nunneley,  106  Mich.  554;  Dean 
v.  Mumford,  102  Mich.  510;  Toms  v.  Williams,  41  Mich.  552;  Mulreed 
v.  Clark,  110  Mich.  229;  Casgrain  v.  Hammond,  134  Mich.  419;  Goodell 
v.  Hibbard,  32  Mich.  47;  Bennett  v.  Chapin,  77  Mich.  526;  Downing 
v.  Birney,  117  Mich.  675;  Hull  v.  Osborn,  151  Mich.  8;  Thatcher  v. 
St.  Andrews  Church,  37  Mich.  264;  Case  v.  Green,  78  Mich.  540; 
Ford  v.  Ford,  80  Mich.  42;  Cole  v.  Lee,  143  Mich.  267;  State  v. 
Holmes,  "115  Mich.  456;  Torpy  v.  Betts,  123  Mich.  239;  Meth.  Church 
v.  Clark,  41  Mich.  730;  Paton  v.  Langley,  50  Mich.  428;  Defreese  v. 
Lake,  109  Mich.,  415. 

Minnesota:  Revised  Laws,  1905  and  Supp.  1909.  Estates  in 
Real  Property,  §§  3191-3239;  Uses  and  Trusts,  §§  3240-3265;  Powers, 
S§  3266-3326.  Rong  v.  Haller,  109  Minn.  191;  Atwater  v.  Russell, 
49  Minn.  57;  Simpson  v.  Cook,  24  Minn.  180;  In  re  Tower,  49  Minn. 
371. 

354 


§  525.]  APPENDIX.  355 

§  524.  In  all  three  States,  the  statutes  on  suspension 
relate  to  real  property  only.  But  on  the  question  of 
how  the  case  of  personal  property  is  regulated,  the  deci- 
sions differ.1  The  purposes  for  which  real  property 
trusts  may  be  created  are  in  part  as  in  New  York,  and 
in  part  different  in  each  state.2 

§  525.  Illustrative  cases  on  trusts  for  charity  are 
given  below.3 


Wisconsin:  Wisconsin  Statutes  (Sanborn  &  Berryman's  Ed.. 
1898  and  Supp.  1899-1906).  Estates  in  Real  Property,  §§  2025-2070; 
Uses  and  Trusts,  §§  2071-2100  a;  Powers,  §§  2101-2158;  Will  of 
Harrington,  142  Wis.  447;  Saxton  v.  Webber,  83  Wis.  617;  Beurhaus 
v.  Ccle,  94  Wis.  617;  Hartung  v.  Witte,  59  Wis.  285;  Becker  v. 
Chester,  115  Wis.  90;  Eggleston  v.  Swartz,  129  N.  W.  Rep.  48; 
Flaherty  v.  Adelman,  138  Wis.  120;  Goodrich  v.  Milwaukee.  24  Wis. 
422;  Ford  v.  Ford,  70  Wis.  19;  Hughes  v.  Hughes,  91  Wis.  138; 
Powers  v.  Powers,  28  Wis.  659;  Danforth  v.  Oshkosh.  119  Wis.  262; 
In  re  Estate  of  Pierce,  56  Wis.  560;  Holmes  v.  Walter,  118  Wis.  4<>n. 
Bridge  v.  Ward,  35  Wis.  687;  Tyson  v.  Tyson,  96  Wis.  59.  Tlie 
words  "and  twenty-one  years  thereafter"  were  in  1887  added  to  tin- 
designation  of  two  lives.  Becker  v.  Chester,  115  Wis.  90;  Hughes 
v.  Hughes,  91  Wis.  138;  In  re  Will  of  Kopmeier,  113  Wis.  233; 
Danforth  v.  Oshkosh,  119  Wis.  262. 

1  In  re  Tower,  49  Minn.  371;  Becker  v.  Chester,  115  Wis.  90; 
Holmes  v.  Walter,  118  Wis.  409;  Danforth  v.  Oshkosh,  119  Wis.  2'.:'; 
Kavanaugh  v.  Watt,  143  Wis.  90;  and  see  DeWolf  v.  Lawson.  61  Wis. 
469,  474;  Webster  v.  Morris,  66  Wis.  3G6,  382;  Ford  v.  Ford.  7" 
Wis.  19;  Scott  v.  West,  63  Wis.  529;  Dodge  v.  Williams.  46  Wis.  70, 
95;  Palms  v.  Palms,  68  Mich.  355;  Penny  v.  Croul,  7G  Mich.  471; 
Toms  v.  Williams,  41  Mich.  552,  569.  As  to  the  general  principles 
concerning  separation  of  void  from  valid  parts  of  a  scheme,  B<  I 
forth  supra  Chapter  X,  see  St.  Amour  v.  Rivard,  2  Mich.  294;  Dean 
v.  Mumford,  102  Mich.  510;  Palms  v.  Palms,  68  Mich.  355. 

2  Statutes  above  cited.  Toms  v.  Williams.  11  Mich.  552;  Wilson  v. 
Odell,  58  Mich.  533;  Palms  v.  Palms.  68  Mich.  355;  Scott  v.  West, 
63   Wis.   529;    Goodrich   v.   Milwaukee,   24   Wis.    1 

3  Michigan:  Meth.  Church  v.  Clark,  11  Mich.  730;  Penny  v.  Croul, 
76  Mich.  471;  St.  Amour  v.  Rivard,  2  Mich.  294;  FitzGerald  v.  City 
of  Big  Rapids,  123  Mich.  28  I  :  Lounsbury  v.  Trust.  \.  w.  R<  p. 
36.  Minnesota:  Notice  the  change  in  the  statute  from  its  original 
form,  and  consult  East  Norway  Lake  Church  v.  Froislie,  37  Minn. 
447;  Little  v.Willford,  31  Minn.  173;  Rong  v.  Haller,  109  Minn.  191; 


356  MICHIGAN,  MINNESOTA  AND  WISCONSIN.        [  §  526. 

Atwater  v.  Russell,  49  Minn.  57;  City  of  Owatonna  v.  Rosebrock,  88 
Minn.  318;  German  Land  Ass'n  v.  Scholler,  10  Minn.  331;  Shanahan 
v.  Kelly,  88  Minn.  202.  Wisconsin:  Maxcy  v.  Oshkosh,  144  Wis. 
238  and  cases  cited;  Kavanaugh  v.  Watt,  143  Wis.  90;  Milwaukee 
Protestant  Home  v.  Becher,  87  Wis.  409;  Webster  v.  Morris,  66  Wis. 
366;  Fadness  v.  Braunborg,  73  Wis.  257;  Will  of  Puller,  75  Wis.  431; 
DeWolf  v.  Lawson,  61  Wis.  469;  Dodge  v.  Williams,  46  Wis.  70; 
Harrington  v.  Pier,  105  Wis.  485;  Danforth  v.  Oshkosh,  119  Wis. 
262;  Gould  v.  Taylor  Orphan  Asylum,  46  Wis.  106;  Beurhaus  v. 
Cole,  94  Wis.  617;  Ruth  v.  Oberbrunner,  40  Wis.  238;  Heiss  v. 
Murphey,  40  Wis.  276. 

NOTE. 

The  following  decisions,  published  too  late  for  reference  in  the  appro- 
priate  places  in  the  text,  may  here  be  noted.  Rents  and  profits  undisposed 
of,  Penniman  v.  Howard,  71  Misc.  598;  the  term  "vested  contingent" 
estate,  is  used  in  Matter  of  Whaleu,  143  App.  Div.  743,  747 ;  liability  of 
vested  estate  to  open  and  let  in,  is  immaterial  if  restricted  within  statutory 
period,  Seitz  v.  Faversham,  141  App.  Div.  903 ;  term  of  suspension  valid 
if  it  must  cease  by  the  end  of  two  lives  in  being,  Ogilby  v.  Hickok,  144 
App.  Div.  61.  The  term  "  perpetuities "  appears  in  our  statutes  in  Real 
Prop.  L.  §  114  a  and  Pers.  Prop.  L.  §  13  a,  relating  to  cemetery  trusts. 


TABLE  OP  INDEX  TOPICS. 


Absolute. 

Accumulation. 

Acquiesce. 

Additional  Term. 

Alienability. 

Aliens. 

Alternative. 

Analogy. 

Annuity. 

Appointment. 

Assignment. 

Autre  Vie. 


Bar. 

Beneficiary. 

Benevolent. 

Bequest. 

Birth. 


Contingency. 

Contravention  of  Trust. 

Convey. 

Corporation. 

Court. 

Covenants. 

Creation  of  the  Estate. 

Creditors'  Rights. 

Cy  Pres. 


Death. 

Deed. 

Deposit. 

Designation  of  Lives. 

Destructihility. 

Discretionary. 

Disposition,  Absolute  Power  of. 


Cemetery  Trusts. 

Cestui. 

Charge. 

Charity. 

Chattels  Real. 

Child. 

Child-bearing. 

Class. 

Combinations. 

Compromise. 

Condition. 

Conditional  Limitation. 

Conflict  of  Laws. 

Consent. 

Construction. 

Contingencies,  Suspension  by. 


Easements. 

Election. 

Equitable  Conversion. 

Escheat. 

Estate. 

Estoppel. 

Exchange. 

Expectant  estate. 


Fee,  Estate  in. 
Former  ADJUDICATION. 

Future  Estates. 


Gestation, 
Gross,  Sim  in 


358 


TABLE  OF  INDEX  TOPICS. 


History. 
Husband. 


Illegality. 

Imperative. 

Infant. 

Indefiniteness. 

Intent. 

Intestacy. 

Insurance  Policy. 

Issue. 


Joint  Tenancy. 
Judgment. 


Laches. 

Leases. 

Legislature. 

Legacy. 

Life. 

Lives  in  Being. 


Possession. 

Possibility. 

Postponement  of  Vesting. 

Power. 

Powers,  Suspension  by. 

Presumptions. 

Promissory  Note. 


Release. 

Religious. 

Remain. 

Remainders. 

Remoteness. 

Renewals. 

Rents  and  Profits. 

Repugnancy. 

Restraints. 

Reversion. 

Revocation. 

Right  of  Entry. 

Rule  in  Shelley's  Case. 

Rules. 


Ma.ioritv 

Measure. 

Merger. 

Michigan. 

Minnesota. 

Minority. 

Mortgage. 

Must. 


Next  Eventual  Estate. 


Separability. 

Separate  Periods. 

Shares. 

Splitting. 

Springing  Uses. 

Statutory  Period. 

Statutory  Sales. 

Subordinate  Measures  of  Term. 

Successive  Suspensions. 

Surviving. 

Suspension. 


Option. 


Partnership. 
Perpetuities. 
Personal  Property. 
Persons  in  Bl  ing. 


Tail,  Estate  in  Fee. 

Term. 

Tenancy. 

Transfer. 

Trust. 

Trust,  Suspension  by. 

Trustee.  . 


TABLE  OF  INDEX  TOPICS.  359 

Unborn  Person.  Waiver. 

Uses.  Widow. 

Wife. 

_  „  Wisconsin, 

vested  and  Contingent. 

Vesting. 

Void. 

Years,  Term  of. 


INDEX. 


(References  are  to  Pages.) 


ABSOLUTE. 

fee,  in  possession,  1,  2-4,  13-38,  75-83,  241. 
ownership,  essential  elements,  77. 
ownership,  suspension  of,  250-278. 
ownership,  several  theories  of,  256-258, 

See  Personal  Property  ;  Alienability  ;  Postponement 
op  Vesting. 
power  of  alienation, 

See  Alienability;  Suspension;  Rules. 
power  of  disposition,  174-175. 
when  power  of  disposition  confers  fee,  174-175. 
ACCUMULATION. 

trusts  for,  See  Trust,  Suspension  by,  (9). 
beneficiary's  right  to  assign,  113-118. 
trust  to  satisfy  mortgage  as,  120-123. 
statutory  period  for,  127-133. 
anticipation  of,  128,  133. 
charitable  trusts,  283. 
ACQUIESCENCE,  25. 
ADDITIONAL  TERM. 

of  minority  after  two  lives,  51-57,  197,  198,  217.  248,  249. 
See  Minority,  Statutory  Period. 
ALIENABILITY.     See  Rules;  Contingencies,  Suspension   bi  ; 
Trust,  Suspension  by;  Powers,  Suspension  by; 
Persons   in   Being;    Creation   of  tiik    Estate; 
Statutory  Period;  Personal  Property;  Convey. 
the  general  statutory  provision,  13. 
"absolute  power  of  alienation,  13.  75  3  I,  240.  241. 
suspension  of,  used  in  three  senses.  13-10. 
particular  property  inalienable,  13-14,  18-22. 

361 


362  INDEX. 

(References  are  to  Pages.) 

ALIENABILITY.— Continued. 

property  alienable,  but  proceeds  inalienable,  14,  18-22,  23. 

the  fund  itself  inalienable,  14-16,  22,  23. 

suspension  of  ownership  of  personalty,  15. 

"  mischief "  to  be  remedied  by  the  statute,  4-11,  15-16, 
177-204,  215,  216. 

necessary  measure  of  suspension  of,  38-97. 

reasons  for  the  Rules,  4-11,  15,  177-204,  215,  216. 

inalienability  means  no  persons  able  to  convey,  13,  16-38, 
75-83,  260. 

restraints  on,  75-83. 

what  does  not  prevent,  75-83. 
ALIENS,  17,  105. 
ALTERNATIVE. 

lives,  to  measure  term,  62,  63. 

dispositions,  290-307. 
ANALOGY. 

between  real  and  personal  property  rules,  252-261,  278. 

between  rules  as  to   fee  tail  and  as  to   "  perpetuities," 
184-186. 
ANNUITY. 

trust  for,  100,  110. 

trust  to  pay  from  rents,  123-127. 

payable  under  trust  of  second  class,  126. 

causes  no  suspension,  118-127. 

may  be  charged  on  property,  126. 

may  be  payable  through  power,  126. 

future,  cross,  remainders,  127. 

when  transferable,  126. 
APPOINTMENT.    See  Powers,  Suspension  by. 

power  of,  causing  suspension,  162-165. 

power  of,  ending  suspension,  27. 

not  causing  suspension,  155. 

exclusive,  163. 

remainder  in  default  of,  247. 

effect  of  power  of,  on  vesting,  247. 
ASSIGNMENT.  See  Trust,  Suspension  by. 

when  a  conveyance,  17,  18. 

beneficiary  when  cannot  make,  30. 

beneficiary  if  creator  of  trust  can  make,  30,  31,  33. 

general,  for  creditors,  43,  267. 

by  beneficiary,  restraints  on,  111-118,  139-141,  260. 

contingent  interests  not  subject  to  at  common  law,  179. 


INDEX  863 

(References  are  to  Pages.) 

ASSIGNMENT.— Continued. 

of  contingent  and  executory  interests,  English  statutes. 
189,  190. 
AUTRE  VIE. 

estate  pur  autre  vie,  221,  224-228. 


BAR,  25. 

BENEFICIARY.  See  Trust,  Suspension  by;  Personal  Prop- 
erty;  Charity;  Statutory  Period;  Persons  in- 
Being. 

protection  of,  a  purpose  of  Rules,  10. 

infancy  of,  causes  no  suspension,  24. 

interference  by,  trust  to  cease,  24,  59. 

ability  of,  to  destroy  trust,  28-37. 

authority  conferred  on,  to  end  trust,  34-38. 

not  "  person  who  can  convey,"  30,  31. 

inability  to  convey  unavoidable,  36. 

does  not  hold  title,  30,  260. 

cannot  assign  or  release,  30,  103,  111-118,  139-141,  260. 

creator  of  trust  as,  30,  31,  33. 

statutory  authority  to,  to  end  trust,  33-38. 

as  remainderman,  33,  106. 

merger  of  interests  of,  33. 

term  need  not  be  measured  by  life  of,  45. 

number  of  not  limited,  71,  72. 

in  trust  for  accumulation,  only  minors,  100,  115,  128. 

other  trusts,  may  be  for  any  persons,  100. 

trustee  and  beneficiary,  103-108. 

infant  beneficiary,  death  of, 
See  Death. 

consent  of,  to  revocation,  144. 

of  powers, 

See  Powers,  Suspension  by. 

rights  of  creditors  of,  31,  32,  260. 

of  trust  in  personal  property,  266-277. 

election  by,  to  take  property  unconverted,  156-8,  168-71, 
288. 
BENEVOLENT,     See  Charity. 
BEQUEST. 

for  life,  gift  over  of  "  what  may  remain,"  17.r>. 
BIRTH.    See  Accumulation;  Statitokv  Period;  Child;  Unborn 
Pkrsi  >n r ;  (1  estatn  >n  ;  I  n  fant. 


364  INDEX. 

(References  are  to  Pages.) 

CEMETERY  TRUSTS.    See  Charity. 
CESTUI.     See  Beneficiary. 
CHARGE. 

causes  no  suspension,  118-127. 
CHARITY,  GIFTS  FOR,  279-285. 
(1.)  Prior  to  Laws  1893,  Chap.  701. 

abolition  of  real  property  trusts,  except  four,  279. 

trusts  for  charity  thus  abolished,  100-101,  279. 

former  law  of  charitable  uses  not  retained,  279. 

cy  pres  doctrine,  279,  283. 

charitable  trusts  in  personal  property  not  abolished,  279. 

their  term  restricted  to  two  lives  in  being,  279. 

gifts  direct  to  charitable  corporation,  not  trusts,  279,  280. 

and  so  no  suspension  of  alienability  or  ownership,  279,  280. 

future  gift  to  corporation  to  be  formed,  280. 

valid  if  term  of  vesting  duly  measured,  95,  280. 

otherwise  void,  95,  280. 

one  charitable  corporation  holding  for  another,  280. 

power  of  corporation  to  take  by  grant,  devise,  bequest,  280. 

foreign  corporation,  foreign  community,  state,  nation,  280. 

Legislature  could  create  exceptions  to  its  scheme,  280. 

also  trusts  of  real  property  could  be  created  for  the  four 
authorized  purposes,  281. 

and  personal  property  trusts  for  any  purpose  not  unlaw- 
ful, 281. 

contingent  gift  to  corporation,  230. 

contingent  on  non-occurrence  of  named  event,  230. 

indefiniteness  or  uncertainty  of  beneficiaries,  281. 

English  law  and  statutory  changes,  references,  281. 
(2.)  Since  Laws  1893,  Chap.  701. 

present  statutes  established  a  new  scheme,  281-285. 

indefiniteness  or  uncertainty  of  beneficiaries  now,  281. 

trustee  may  be  named,  and  takes  legal  title,  282,  283. 

if  no  trustee  named,  title  vests  in  supreme  court,  282,  283. 

supreme  court  has  control,  282. 

when  court  may  authorize  changes  to  accomplish  general 
purpose,  282. 

consent  of  donor  or  grantor,  if  living,  282. 

attorney-general  to  represent  beneficiaries,  282. 

other  statutes  relating  to  charities,  282-283. 

cemetery  trusts,  282,  285. 

personal  property  trusts  for  charity,  283. 

retroactive  effect  of  statutes,  283. 


INDEX.  365 

(References  are  to  Pages.) 

CHARITY,  GIFTS  FOB..— Continued. 

present  statutes  restore  early  law,  283. 

corporation  may  be  formed  to  act  as  trustee,  283. 

trustee,  designation  of,  283. 

cy  pres  statute  applies  to  powers,  233. 

gift  to  foreign,  unincorporated  college,  283. 

charitable  trust  must  not  violate  law  as  to  accumulations, 
283. 

indefiniteness  of  purpose,  283. 

indefinite  trusts  for  private  purposes,  invalid,  284. 

charitable  trust  not  restricted  to  statutory  period,  284. 

but  charities  may  have  a  relation  to  suspension,  284. 

might  be  inseparably  connected  with  void  scheme,  284. 

ultimate  charity  does  not  obviate  intermediate  suspension, 
284. 

property  may  still  be  given  direct  to  charitable  corpo- 
ration, 230,  284. 

incapacity  to  convey  causes  no  suspension,  230. 

voluntary  unincorporated  associations,  285. 

vesting  in  interest  in  charitable  corporation  sufficient,  230. 

"  perpetuities  "  and  charitable  trusts,  285. 

limitation  on  amount,  to  charity,  285. 

gifts,  two  months  before  death,  former  provision,  285. 

conflict  of  laws,  348-353. 


CHATTELS,  REAL. 

statutory  period  for,  74,  250,  251,  278. 

limitations  of,  229. 
CHILD.    See  Infant;  Minority. 

none  deemed  too  old  to  have,  40. 

posthumous,  49. 

en  ventre  sa  mere,  47,  48,  130. 

eldest  or  youngest,  49,  50. 

children,  meaning  of  term,  244,  245,  246. 

after  born, — effect  on  of  direction  to  sell,  288. 
CHILDBEARING. 

none  deemed  too  old  to  have  child,  40. 
CLASS. 

gifts  to,  remoteness,  51-57,  197,  198,  217,  248,  249. 
COMBINATIONS 

of  trusts  and  powers,  result,  144-145. 


3G6  INDEX. 

(References  are  to  Pages.) 

COMPROMISE,  25. 

CONDITION,  See  Contingency. 

what,  31. 

effect,  34,  35. 

imposed  on  fee,  78. 

precedent  and  subsequent,  89-90,  91,  97. 
CONDITIONAL  LIMITATION. 

is  now  a  remainder,  205. 

CONFLICT  OF  LAWS,  348-353. 

real  property,  law  where  land  lies,  348-353. 
personal  property,  law  of  owner's  domicile,  348-353. 
bearing  of  rules  on  suspension,  and  postponement,  348-353. 
appointment  of  trustee,  may  involve  finding  of  jurisdic- 
tion, 348. 
scope  of  our  laws  on  suspension,  349-353. 
effect  of  laws  of  other  jurisdictions  here,  349-353. 
presumption  as  to  law  eleswhere,  350. 
public  policy,  351,  352,  353. 
when  property  remitted  to  other  jurisdiction,  353. 

CONSENT. 

of  court,  not  a  "  conveyance,"  26,  103. 

of  third  person,  effect  of  requiring,  26,  28. 

power  to  convey  on,  obviates  suspension,  26. 

of  court,  and  of  third  person,  distinguished,  27. 

court  cannot,  to  destroy  trust,  26. 

revocation  upon,  144. 

CONSTRUCTION,  308-347. 
(1.)   General  rules,  308-311. 

intent  controlling,  88,  158,  166,  168,  265,  308,  311,  313, 

340,  343,  345,  346. 
void  provisions  may  show  intent,  308. 
testator  speaks  as  of  what  time,  308. 
construed  as  if  no  rules  on  suspension  or  postponement, 

308. 
Rules  then  applied  to  determine  validity,  309. 
if  two  constructions   allowable,  valid  preferred,  71,  244, 

245,  309. 
construction  liberal,  71,  309. 
testator  presumed  to  know  the  law,  309. 
testator  presumed  to  intend  valid  will,  309. 
testator  may  state  rules  to  be  followed,  293. 
present  public  policy,  when  favored.  310. 


INDEX.  3G7 

(References  are   to  Pages.) 

CONSTKUCTION.— Continued. 

effect  given  to  every  part  of  instrument,  310. 

law  seeks  to  avoid  intestacy,  310. 

favors  absolute  gift,  as  against  less  positive  qualifications, 

80,  310. 
intended  meaning  overrides  technical  or  ordinary  mean- 
ing, 310. 
court  may  transpose,  reject  or  supply,  310. 
evident  intent  controls  position,  presence   or  absence  of 

words,  311. 
irreconcilable  repugnancy,  later  clause  prevails,  311. 
"  practical  construction,"  25. 
of  powers,  149. 

presumptions,  312,  313.     See  Presumptions. 
(2.)    Vested  and  contingent  estates,  311-347. 

See  Contingencies,  Suspension  by. 
law  favors  vesting,  10,  311. 
favors  early  vesting,  311. 
never  contingent  if  can  be  vested,  311. 
"  from  and  after,"  "  upon  death  of,"  effect  on  vesting,  311. 
presumptions   favoring  widow,  heirs,   issue,   descendants, 

312. 
equality  among  children,  312. 
against  disinheritance  if  dying  before  possession,  312, 

See  Death. 
residuary  clauses,  312. 
residue  of  residue,  312. 
codicils,  312. 

conflicting  rules  or  presumptions,  313. 
grantor  or  testator  may  create  vested  or  contingent,  313. 
when  intent  shown,  statutory  test  applied,  313,  318. 
estate  to  person  not  in  being,  must  be  contingent,  313. 
vested,  and  contingent  future  estates,  313. 
death  of  remainderman  pending  prior  estate,  86,  87,  88,  91, 

211,  312,  316,  332,  333. 
(3.)   Vested  or  contingent  at  common  law,  313-319. 

the  distinction  stated  and  illustrated,  313-319,  329,  330. 
(4.)    Vested  or  contingent  in  New  York,  319-343. 
definitions  of  vested  and  contingent,  319. 
whether  these  change  common  law  or  not,  319-340. 
authorities  reviewed,  319-340. 
"  heirs  "  as  remaindermen,  319-340. 
rules  applicable  to  real  and  personal  property,  341. 


368  INDEX. 

(References  are   to  Pages.) 

CONSTRUCTION.— Continued. 

gift  immediate,  enjoyment  postponed,  341. 

gift  future,  depending  on  condition  precedent,  341. 

only  gift  in  direction  to  pay  or  convey,  contingent,  341. 

futurity  annexed  to  substance  of  gift,  341. 

if  also  words  importing  present  gift,  vested,  342. 

gift  absolute,  payment  postponed,  vested,  342. 

postponement  to  let  in  intermediate  estate,  343. 

vested,  mere  possession  postponed,  343. 

See  Possession. 
death  without  heirs,  or  issue,  343. 
means  heirs  or  issue  at  death  of  ancestor,  343. 
fee,  devise  over  on  death,  to  survivors,  343. 
means  death,  survivorship,  during  testator's  life,  343. 
but  intent  controls,  343. 
exception  to  rule,  344. 
lapse  of  devises  and  legacies,  345. 
statute  abolishing  estates  tail,  345. 
statute  affecting  remainder  on  estate  tail,  345. 
words  of  survivorship,  when  refer  to  time  of  distribution, 

345. 
unless  contrary  intent  shown,  345. 

personal  property  may  be  defeasibly  vested,  265,  345,  346. 
rule  favoring  early  vesting  applies  to  legacies,  346. 
intent  controls,  346. 

death  before  division,  relating  to  time  appointed,  346. 
death  when  presumed,  346. 
postponement  for  convenience  of  estate,  346. 
or  for  benefit  of  legatee,  346. 
effect  of  provisions  as  to  interest  or  income,  346. 
effect  of  gift  over  of  corpus,  347. 
gift  of  fund  not  in  existence  as  such,  347. 
postponement  of  legacies  charged,  347. 
CONTINGENCIES,  SUSPENSION  BY,  84-97;  262-266. 
test  of  suspension,  no  persons  to  convey  fee,  84. 
estates  in  possession,  estates  in  expectancy,  84-85. 
estate  in  possession  alienable,  no  suspension,  85. 
reversion,  vested,  possibly  contingent,  alienable,  85. 
reversions  cause  no  suspension,  85. 
future  estates  either  vested  or  contingent,  85,  311-347. 

See  Construction,  (2),  (3),  (4);  Vested. 
vested,  contingent,  defined,  85. 
vested,  several  senses  of  the  word,  85-88,  356. 


INDEX.  369 

(References  are  to  Pages.) 

CONTINGENCIES,  SUSPENSION  BY.— Continued. 
vested  in  possession,  85. 
vested  in  interest,  86. 

remainder,  if  vested,  vested  in  interest,  86. 
when  remainder  vests  in  possession,  86. 
vested  subject  to  divesting,  86,  89-90,  91,  356. 
such  may  be  present  or  future  estates,  86. 
divesting  may  be  total  or  partial,  86. 
vested  subject  to  open  and  let  in,  86. 
effect  of  death,  as  to  defeasance,  86,  87,  88,  91,  211,  312, 

316,  332,  333. 
vested  right  to  contingent  estate,  87-88,  90,  91,  356. 
such  right  may  be  defeasible,  87-88. 
intent  controls,  88. 

"  vested  contingently,"  meaning,  88,  356. 
vested  sometimes  means  alienable,  88. 
sometimes  inviolable,  or  non-defeasible,  88. 
vested  estate  always  alienable,  88-90. 
except  under  certain  trusts,  88. 
vested  and  alienable,  causes  no  suspension,  88. 
but  suspension  may  be  caused  by  other  limitations,  89,  92. 
thus  vesting  defeasibly  implies  contingent  estate,  89. 
every    contingency    is    both    precedent    and    subsequent, 

89-90,  91. 
contingent  estates,  two  main  groups,  90. 
first  group,  event  uncertain,  90. 
here  person  in  being  to  alien,  90. 
all  expectant  estates  alienable,  90. 
if  person  in  being,  no  suspension,  90,  92. 
defeasible  vesting,  and  vested  right  in  contingent  estate, 

91. 
second  group,  person  uncertain,  92. 
such  estates  again  divisible,  into  two  classes,  92-93. 
first  subdivision,  class  certain,  particular  person  not,  92. 
here  no  suspension  of  alienability,  93. 
the  test  under  Rule  II,  is  different,  93. 
second  subdivision,  person  not  yet  in  being,  93. 
this  class  causes  suspension,  94. 
because  alienation  impossible,  94. 
test  of  suspension  illustrated,  94. 
validity  of  suspension  depends  on  term,  95. 
sometimes  validity  caused  by  contingency,  95. 
corporation  as  person  not  yet  in  being,  95. 


370  INDEX. 

(References  are   to  Page's.) 

CONTINGENCIES,  SUSPENSION  BY.— Continued. 

contingent  estates,  rights,  interests,  95. 

contingent  potential  estates,  95. 

chances,  possibilities,  96-97. 

what  contingencies  effect  no  suspension  or  postponement^ 
96-97. 

right  of  entry,  96. 

possibility  of  reverter,  96. 

options,  other  releasable  contracts,  96. 

mortgagees,  96-97. 

ownership  of  mortgage  may  be  suspended,  97. 

judgments,  97. 

escheat,  97. 

covenants,  reservations,  easements,  97. 

condition  subsequent,  89-90,  97. 

charge,  118-127. 

other  illustrations,  see  75-83. 

separating  valid  from  void,  290-307. 
CONTINGENCY.    See  Vested  and  Contingent. 

suspension  by,  84-97;  262-266. 

postponement  by,  175-249. 

with  double  aspect,  294-307. 

alternative,  290-307. 
CONTRAVENTION  OF  TRUST. 

conveyance  in,  void,  103,  109,  110,  139,  140,  141,  260,  267. 
CONVICT. 

when  "  person  in  being,"  24. 
CONVERSION.    See  Equitable  Conversion. 
CONVEY. 

persons  who  can.  See  Persons  in  Being;  Powers,  Sus- 
pension by;  Alienability;  Personal  Property; 
Assignment;  Beneficiary;  Creditors'  Rights; 
Trustee. 

if  can  assign,  can  "  convey,"  17,  18. 

if  can  release,  can  "  convey,"  17,  18. 

inability  to,  suspension  results,  17,  18. 

ability  to,  no  suspension,  17,  22. 

mere  ability  to  enable  others  to,  28. 

ability  to  must  be  absolute,  25-29. 

ability  of  beneficiary  to,  28-37. 

contingencies,  when  cause  inability  to. 
See  Contingencies,  Suspension  by. 

trusts,  when  cause  inability  to. 


INDEX.  371 

(References  are  to  Pages.) 

CONVEY.— Continued. 

See  Trust,  Suspension  by. 

powers,  when  cause  inability  to. 
See  Powers,  Suspension  by. 

power  to,  effect  of  on  suspension. 

See  Persons  in  Being;  Alienability. 

trustee's  power  to  reconvey,  27. 
CORPORATION.    See  Charity. 
COURT. 

is  not  a  "  person  "  to  convey,  23,  26. 

suspension  until  court  decides,  42. 

sales  by  trustee  with  approval  of,  103. 

power  of,  does  not  obviate  suspension,  103. 

authority  to  anticipate  accumulations^  when,  116,  117. 

compelling  execution  of  power.  163. 

when  title  vests  in,  282,  283. 

splitting  of  gift  by,  296-304. 
COVENANTS. 

cause  no  suspension,  97. 
CREATION  OF  THE  ESTATE.    See  Rules;  Statutory  Period; 
Personal  Property;  Postponement  of  Vesting. 

statutory  period  counts  from  creation  of  estate,  38,  211. 
218. 

in  a  deed,  from  delivery,  38. 

in  a  will,  from  testator's  death,  38. 

powers,  see  Powers. 

when  an  instrument  is  "  testamentary,"  38. 

occurrences  before  testator's  death,  importance,  39. 

occurrences  after  testator's  death,  when   immaterial,   39, 
57,  292. 

scope  of  this  principle,  61-62. 

beneficiary  need  not  be  in  being  at,  when,  71,  127-133. 
CREDITORS'  RIGHTS. 

in  real  and  personal  trusts,  31,  32,  260,  268. 

trusts  to  sell  or  mortgage  or  lease,  100,  110. 

in  trust  for  accumulation,  116. 
CY  PRES. 

See  Charity. 

DEATH. 

of  person  to  consent,  effect,  27. 

testator's,  creation  of  estate  counts  from,  38. 

testator's,  importance  of  occurrences  before,  39,  50. 


372  INDEX. 

(References  are  to  Pages.) 

DEATH.— Continued. 

testator's,  occurrences  after,  immaterial,  39,  57. 

unless  they  disarrange  general  scheme,  292. 

testator's,  law  at  time  of,  controls  validity,  140. 

testator's  meaning,  as  of  what  time  construed,  308. 

of  trustee,  trust  not  ended  by,  43. 

minority  means  until  majority  or  earlier  death,  47. 

partnership,  funds  to  remain  in,  after  death,  81. 

death  intestate,  causes  no  suspension,  82. 

promissory  note  payable  after  death,  82. 

defeasible  vesting,  effect  of  death  during  prior  term,  86, 
87,  88,  91,  211,  312,  316,  332,  333. 

death  of  infant  beneficiary,  devolution  of  accumulations, 
123,  132. 

death  without  heirs,  or  issue,  343. 

fee,  devise  over  on  death,  to  survivors,  343. 

death  before  division,  relating  to  time  appointed,  346. 

death  when  presumed,  346. 

of  beneficiary,  when  terminates  trust,  43,  44. 
DEED. 

creation  of  estate  at  delivery  of,  38. 
DEPOSIT. 

of  stock  for  fixed  term,  effect,  82. 

of  fund  held  for  fixed  term,  82. 

in  bank,   "in  trust,"   267. 
DESIGNATION  OF  LIVES. 

See  Statutory  Period  (5). 
DESTRUCTIBILITY. 

of  trusts,  by  merger,  revocation,  143-144. 

of  remainders  at  common  law,  196. 

of  remainders,  under  Revised  Statutes,  199. 
DISCRETIONARY 

powers,  163. 
DISPOSITION,  ABSOLUTE  POWER  OF. 
See  Absolute. 


EASEMENTS. 

cause  no  suspension,  97. 
ELECTION. 

to  take  property  unconverted,  156-158,  168-171,  288. 

to  take  by  descent,  and  not  under  power,  154,  292. 

by  widow,  292. 


INDEX.  373 

(References  are  to  Pages.) 

EQUITABLE  CONVERSION,  286-289. 

defined,  286. 

mere  discretionary  power  does  not  effect,  287. 

direction  to  sell  may  be  implied,  287. 

discretion  in  trustee,  when  immaterial,  288. 

failure  of  purpose,  288. 

election  to  take  property  unconverted,  156-158,  168-171, 
288. 

reconversion,  288. 

surplus  proceeds  not  needed  for  purpose  of  sale,  288. 

direction  to  sell,  effect  on  afterborn  child,  288. 
ESCHEAT. 

causes  no  suspension,  97. 
ESTATE. 

scope  of  term,  208. 

in  fee,  See  Fee. 

for  life,  See  Life. 

for  years,  See  Years. 

in  joint  tenancy,  See  Tenancy. 

in  common,  See  Tenancy. 

of  trustee,  See  Trustee. 

of  beneficiary,  See  Beneficiary. 

in  personal  property,  208. 

expectant,  See  Expectant  Estate. 

in  remainder,  See  Remainder. 
ESTOPPEL,  25. 
EXCHANGE. 

power  to,  effect  on  suspension,  21. 
EXPECTANT  ESTATE,  84-85. 

alienable,  devisable,  descendible,  90,  259. 

relation  to  remainders,  206. 


EEE,  ESTATE  IN.    See  Absolute; 

restraints  on  alienation,  75-83. 

remainder  on,  179,  205,  216-220. 

remainder    on,    must    vest   by    end    of   statutory    period, 

216-220. 
when  conferred  by  absolute  power  of  disposition,  174,  175. 
FORl\rER  ADJUDICATION,  25. 

FUTURE  ESTATES.    See  Contingencies,  Suspension  by;  Post- 
ponement of  Vesting;  Remainders;   Construc- 


374  INDEX. 

(References  are  to  Pages.) 

FUTURE  ESTATES.— Continued. 

tion;    Personal    Property;    Vested    and    Con- 
tingent; Estate. 

suspension  by,  134. 

same  principles  apply  to  suspension  by  trusts,  133-143. 

GESTATION. 

period  of,  48,  49,  54. 
GROSS,  SUM  IN. 

under  Revised  Statutes,  112,  125. 


HISTORY. 

of  perpetuities,  suspension,  postponement,  4-8,  177-204. 
HUSBAND.    See  Lives  in  Being,  (9). 


ILLEGALITY. 

not  presumed,  72,  73. 

See  Statutory  Period  (17). 
power   not   requiring    illegality,    not    assumed   void,    72, 
73,  154. 
IMPERATIVE. 

statutory  requirements  are,  57,  58. 
power  to  sell  and  divide,  161. 
power  to  appoint,  162-165. 
power  to  convey,  165-168,  170. 
INDEFINITENESS. 

of  beneficiaries,  108,  281. 
INFANT.    See  Minority  ;  Persons  in  Being  ;  Birth  ;  Beneficiary  ; 
Gestation;  Child;   Childbearing. 
purpose  of  Rules,  to  protect  infants,  9. 
disability  due  to  infancy,  no  suspension,  24. 
suspension  during  infancy  of  more  than  two,  42. 
minority  is  a  life,  46-48. 
infant  in  ventre  sa  mere,  47,  48,  130. 
minority  or  earlier  death,  47. 

additional  minority  after  two  lives,  51-57,  197,  198,  217, 
248,  249. 
See  Statutory  Period  (10). 
minor  as  "  person  in  being,"  55. 
minority  not  assumed,  to  defeat  scheme,  72. 


INDEX.  375 

(References  are  to  Page's.) 

INFANT.— Continued. 

accumulation  for,  See  Trust,  Suspension  by. 

trust  for  accumulation,  infant  also  remainderman,  123. 

death  of  infant,  devolution  of  property,  123,  132. 

effect  of  will  of  infant,  123. 

accumulation  must  be  for  infants  only,  100,  115,  128. 

and  during  minority  only. 

See  Trusts,  Suspension  by  (9). 

election  by  minors  to  terminate  power,  158. 

contingent  remainder  in  fee  on  remainder  to  infant  in 
fee,  217. 

remainder  to  infant,  after  two  lives,  217. 

remainder  to  children  surviving  to  majority,  218. 
INTENT. 

controls,  88,  158,  166,  168,  265,  308,  311,  313,  340,  343, 
345,  346. 
INTESTACY. 

causes  no  suspension,  82. 
INSURANCE  POLICY. 

proceeds,  trust  in,  non-assignable  interest,  268. 
ISSUE. 

meaning,  244. 

death  without,  343. 


JOINT  TENANCY. 

nature  of,  66-70,  224-228. 
presumption  against,  66-71. 
whether  estate  in  is  pur  autre  vie,  224—228. 
JUDGMENT. 

causes  no  suspension,  97. 

LACHES,  25. 

LAW.    See  Legislature. 

LEASES. 

under  express  trusts,  118-127. 

meaning,  118-127. 
LEGACY. 

trust  to  pay,  causes  no  suspension,  118-127. 
LEGISLATURE. 

not  a  "  person  "  who  can  convey,  23. 

power  over  trusts,  23,  34,  36. 

power  over  rules  concerning  suspension,  23. 


376  INDEX. 

(References  are  to  Pages.) 

LEGISLATURE.— Continued. 

State  as  property  owner,  23. 

retroactive,  retrospective,  ex  post  facto  laws,  23. 
LIFE.    See  Statutory  Period. 

estate  for,  220-228. 

restraints  on  estate  for,  78-81. 

remainder  on  estate  for,  could  be  barred,  179. 

remainder  on,  when  must  vest,  220-228. 

successive  estates  for,  only  first  two  valid,  220,  259. 

ultimate  remainder  accelerated,  220,  221,  222,  259. 

estate  pur  autre  vie,  221,  224-228. 

estate  for  life  in  term  of  years,  221. 

estates  for  classified,  227. 
LIVES  IN  BEING.    See  Statutory  Period;  Personal  Property. 


MAJORITY.      See   Infant;    Accumulation;    Postponement    of 

Vesting;  Statutory  Period;  Child;  Minority. 
MEASURE.     See  Statutory  Period;  Term. 

of  suspension  or  postponement,  40-60. 

subordinate,  when,  58-62. 
MERGER. 

when  and  when  not,  33,  106. 
MICHIGAN,  354-356. 
MINNESOTA,  354-356. 
MINORITY.    See  Infant. 

suspension  for,  after  two  lives,  51-57,  197,  198,  217,  248, 
249. 

disability  due  to  infancy,  no  suspension,  24. 

minority  is  a  life,  46-48. 

minority  or  earlier  death,  47. 

minor  as  "  person  in  being,"  55. 

minority  not  assumed,  to  defeat  scheme,  72. 

trust  for  accumulation  during,  100,  115,  128. 

death  during,  123,  132. 

election  during,  to  terminate  power,  158. 

remainder  to  such  as  reach  majority,  218. 
MORTGAGE. 

suspension  until  mortgage  paid,  41. 

itself,  causes  no  suspension,  96-97. 

ownership  of,  may  be  suspended,  97. 

trust  to  satisfy  from  rents,  120-123. 


INDEX.  377 

(References  are   to  Pages.) 

MUST. 

alienability  must  be  certain  by  end  of  term,  57,  58,  61,  62, 

240. 
vesting  must  be  certain  by  end  of  term,  210-213,  214,  218, 

219,  241,  259,  294,  295. 
must  vest  in  interest  when,  213,  214,  219. 


NEXT  EVENTUAL  ESTATE. 

persons  presumptively  entitled  to,  145,  260,  356. 


OPTION. 

does  not  occasion  suspension,  96,  97. 

ability  to  convey  must  depend  on  mere,  25,  27,  29. 


PARTNERSHIP. 

funds  to  remain  in  after  death,  81. 
PERPETUITIES.     See  Contingencies,   Suspension  by;   Trust, 
Suspension  by;  Powers,  Suspension  by;  Post- 
ponement of  Vesting;  Rules;  Persons  in  Being; 
Remainders;  Suspension;  Alienability. 
term  not  used  in  N.  Y.  Statutes  except  in  one  instance, 

7,  285,  356. 
relation  of  N.  Y.  Rules  to  common  law,  4-8,  177-204,  181, 

190-198,  200-204. 
purposes,  8-11,  15-16,  177-197,  198-204. 
views  of,  when  our  statutes  framed,  4-8,  177-204. 
early  law,  no  strict  rule  concerning,  179. 
why  not  then  needed,  179. 
history  of,  4-8,  177-204. 
different  theories  concerning,  181,  182,  186,  187,  190,  191, 

192,  193,  195-198,  199. 
relation  to  remainders,  183,  190,  196,  197,  198,  199. 
gifts  for  charity,  279-285. 
personal  property,  250-278. 
PERSONAL  PROPERTY,  250-278. 

(1.)  Bide  II,  Absolute  ownership,  250. 

no  suspension  beyond  statutory  period,  250. 
all  suspension  caused  by  trusts,  contingencies,  or  powers, 
261. 


878  INDEX. 

(References  are  to  Pages.) 

PERSONAL  PROPERTY.— Continued. 

(2.)   The  general  statutory  provision,  250-251. 

two  lives  in  being  the  maximum  term,  250,  251,  253. 

chattels  real,  250,  251. 

meaning  of  "  absolute  ownership,"  251-262. 

the  two  Rules  in  real  property,  merged  in  one  in  personal, 
251-252,  253,  255. 

suspension,  here  refers  both  to  alienability  and  to  vesting, 
17,  252. 

several  theories  of  absolute  ownership,  256-258. 

first  theory,  absolute  ownership  means  alienability,  256. 

second  theory,  it  means  vesting,  and  alienability  by  bene- 
ficial owner,  257. 

third  theory,  it  means  vesting,  and  alienability  by  any  one, 
257. 
(3.)  Rules  for  real  and  personal  property  similar,  252-261. 

except  as  to  term,  real  property  principles  apply,  252,  254, 
255,  258,  278. 

this  results  from  statute,  and  by  analogy,  258,  259. 

personal  property  statutes  when  applicable  to  real  prop- 
erty, 259. 

illustrations  of  applying  like  principles  to  real  and  per- 
sonal, 259-261. 

thus,  preference  for  tenancy  in  common,  66-72,  228,  259, 
309. 

distinction  between  vested  and  contingent,  259. 

that  remainders  must  vest  by  end  of  statutory  period,  259. 

statutes  as  to  successive  life  estates,  220,  221,  222,  259. 

and  acceleration  of  remainder,  220,  221,  222,  259. 

that  expectant  estates  are  alienable,  devisable  and  descend- 
ible, 259. 

the  test  of  alienability,  260. 

that  acts  in  contravention  are  forbidden,  103,  109, 110,  139, 
140,  141,  260,  267. 

that  certain  beneficial  interests  are  not  transferable,  111- 
118,  139-141,  260. 

rights  of  beneficiaries'  creditors,  31,  32,  260,  268. 

next  eventual  estate;  rents  undisposed  of,  145,  260. 

trust  to  apply,  implies  right  to  collect,  260. 

that  beneficiary  has  no  legal  title,  30,  260. 

that  trust  ceases  when  purpose  ends,  260. 

that  all  powers  abolished  and  new  code  adopted,  4,  5,  260, 
278. 


INDEX.  379 

(References  are   to  Pages.) 

PERSONAL  PROPERTY.— Co ntinued. 

thus  definition  and  classification  of  powers,  4,  5,  147-150, 

261. 
method  of  computing  suspension  under  power,  2G1. 
restrictions  on  estate  to  be  given,  261. 
existence  of  power,  effect  on  vesting,  261. 
absolute  power  of  disposition,  as  effecting  fee,  174-175, 

261. 
that  will  passes  all  property  covered  by  power,  261. 
some  statutes  not  same  for  real  and  personal,  261. 
thus,  statute  abolishing  all  trusts  except  certain,  261. 
or  statute   allowing  further  minority   for   suspension   or 

postponement,  261. 
(4.)  Suspension  by  contingencies,  262-266. 

any  contingency  suspends   absolute  ownership,   262,  264, 

265. 
whether  alienability  suspended  or  not,  262,  263,  264,  265. 
test  lies  in  vesting  and  alienability,  262. 
contingency  must  cease  with  two  lives,  263,  264. 
vesting  subject  to  divesting,  263,  345-346. 
whether  only  remainders  must  vest,  265. 
"  remainder  "  applies  to  both  real  and  personal  property, 

208,  265. 
personal   property  may  become  alienable  before  vesting, 

265. 
test  of  vesting  same  as  in  real  property,  265,  345-346. 
controlling  effect  of  intent,  265. 
special  principles  of  construction,  See  Construction. 
(5.)  Suspension  by  express  trusts,  266-277. 

some  trusts  cause  suspension,  others  not,  266. 

effect  on  alienability,  266. 

trusts  may  be  for  any  purpose  not  wrongful,  266,  267. 

deposits  in  bank  in  trust,  267. 

trustee  cannot  transfer  in   contravention,   103,   109,   110, 

139,  140,  141,  260,  267. 
beneficiary  of  certain  trusts  cannot  assign,  111-118,  139- 

141,  260,  267. 
in  others  he  can  assign,  267. 
trusts  cease  when  purpose  or  term  ceases,  L><!7. 
duration  of  general  assignment  for  creditors,  43,  267. 
trusts  apply  income,  beneficiary  cannot  assign,  268. 
trusts  to  accumulate,  beneficiary  cannot  assign,  268. 
proceeds  of  insurance  policy,  in  trust,  not  assignable,  263. 


380  INDEX. 

(References  are  to  Pages.) 

PERSONAL  PROPERTY— Continued. 

not  to  be  reached  by  creditors,  exception,  268. 

trusts  for  accumulation  like  realty  statute,  268. 

term  not  the  same,  268. 

when  property  partly  real,  partly  personal,  268. 

revocation  of  trust  by  creator,  on  consent,  144,  268,  269. 

destruction  of  trust  by  merger,  former  statute,  268. 

whether  power  to  sell  and  distribute,  obviates  suspension, 

269-277. 
postponement  of  possession  does  not  suspend  ownership, 

270. 
title  in  trustee  does  not  necessitate  suspension,  271. 
analogy  to  real  property,  271,  272. 
title  to  personal  property  in  executor,  in  trust,  272. 
title  in  executor  causes  no  suspension,  272. 
if  power  to  sell  valid,  and  interests  vested,  no  suspension, 

273. 
if  power  void,  or  interests  not  vested,  when  suspension, 

273. 
if  power  co-operates  to  effect  undue  suspension,  void,  273. 
mere  existence  of  trust  does  not  necessitate  suspension, 

273,  274. 
these  propositions  illustrated,  275-277. 
charitable  trusts,  279-285. 
(6.)  Suspension  by  powers,  278. 

the  abolition  of  powers,  applies  to  personal  property,  4,  5, 

260,  278. 
the  subject  now  regulated  by  statute,  278. 
analogy  to  real  property,  278. 
(7.)  The  statutory  period,  278. 
two  lives  only,  278. 

rule  as  to  chattels  real,  74,  250,  251,  278. 
(8.)   Conflict  of  laws,  348-353. 
PERSONS  IN  BEING,  16-38. 

See  Alienability;  Assignment;  Convey;  Contraven- 
tion; Suspension;  Rules;  Trust,  Suspension  by; 
Contingencies,  Suspension  by;  Powers,  Suspen- 
sion by;  Personal  Property. 
(1.)  In  general. 

"  no  persons  in  being,"  16-38,  75,  84,  94,  98,  110,  150,  153. 

several  causes  for  absence  of,  75,  150. 

no  persons  who  can  convey,  16-38,  150,  153. 

if  "  no  persons,"  inalienability  results,  16-38,  75-83,  240. 


INDEX.  381 

(References  are  to  Pages.) 

PERSONS  IN  BEING.— Continued. 

if  every  interest  conveyable,  no  suspension,  16-17,  75-83, 

240,  241. 
this  principle  not  applicable  to  Rule  II,  17,  75-83,  241. 
if  conveyable  by  many,  uniting,  no  suspension,  17. 
releases  are  conveyances,  17,  18. 
assignments  are  conveyances,  17,  18. 

if  any  interest  non-conveyable,  suspension  results,  17-18. 
principles  applicable  to  personalty,  17. 
effect  of  alienage,  17. 

limitation  to  persons  not  in  being,  suspension,  18. 
certain  express  trusts,  non-conveyable,  suspension,  18-19. 
powers,  similar  principles,  18. 

power  to  alien,  obviates  suspension,  19,  75-83,  240,  241. 
authority  to  defer  sale,  no  suspension,  19. 
power  not  fettered  by  authority  to  defer,  19. 
nor  by  suggestion  to  defer,  19. 
nor  by  need  of  time  to  sell  to  advantage,  19. 
power  to  sell  property  and  proceeds,  no  suspension,  19-20. 
power,  relation  of  to  suspension,  20-21. 
obviates  suspension  when,  and  how  far,  20-21,  171,  172. 
depends  on  validity  of  purpose,  20-21. 
if  proceeds  still  inalienable,  suspension,  20-21. 
exchange,  power  to,  effect  on  suspension,  21. 
"  fund "    inalienable    though    property    saleable,    14-16, 

18-22. 
suspension  not  caused  by  mere  failure  to  convey,  22,  75- 

83,  240. 
if  persons  who  can  convey,  no  suspension,  22,  75-83,  240. 
four  rules  on  "  no  persons  in  being,"  22-38. 
(2.)  "  Persons  "  must  represent  all  interests,  22-23. 
and  be  able,  together,  to  convey  fee,  22-23. 
statutory  sales  do  not  obviate  suspension,  23. 
for  proceeds  still  inalienable,  23. 
and  legislature  is  not  a  "  person,"  23. 
legislative  power  over  trusts,  23,  34,  36. 
and  over  rules  concerning  suspension,  23. 
State  as  property  owner,  23. 
retroactive,  retrospective,  ex  post  facto,  laws,  23. 
court  is  not  a  "  person,"  23,  26. 
(3.)  Absence  of  "  persons  "  must  be  due  to  instrument,  23-25. 
so  must  their  presence,  to  obviate  suspension,  23-25. 
disability  flue  to  infancy,  no  suspension,  24. 


882  INDEX. 

(References  are  to  Pages.) 

PEESONS  IN  BEING.— Continued. 

inalienability  through  outside  causes,  immaterial,  24. 
convict  is  "  person  in  being,"  24. 
trust  to  cease  if  beneficiary  "  interferes,"  24,  59. 
trust  to  cease  if  hostile  claims,  24. 
estoppel,  laches,  waiver,  bar,  25. 
acquiescence,  former  adjudication,  25. 
compromise,  practical  construction,  25. 
(4.)  Ability  to  convey  must  be  absolute,  25-29. 
must  depend  on  mere  option,  25,  27. 
must  not  depend  on  condition  precedent,  25,  26,  29. 
judge  is  not  a  "  person,"  23,  26. 
his  consent  is  not  a  "  conveyance,"  26. 
his  consent  is  condition  precedent,  26. 
court  cannot  consent  to  destroy  trust,  26. 
court  decides  upon  the  facts,  26. 
consent  of  third  person,  effect  of  requiring,  26,  28. 
power  to  convey  on  consent  obviates  suspension,  26. 
consent  of  court,  and  third  person,  distinguished,  27. 
death  of  person  to  consent,  27. 
trustee's  power  to  reconvey,  27. 
or  to  terminate  the  trust,  27. 
such  power  obviates  suspension,  27. 
power  to  appoint,  and  end  suspension,  27. 
reserved  power  to  revoke,  27,  28,  59. 
revocation  not  "  in  contravention,"  28. 
personal  property,  statutory  power  to  revoke,  28. 
power  to  convey  to  beneficiary  when  debts  paid,  28. 
power  to  sell  for  fixed  price,  or  less  on  consent,  28. 
(5.)  Ability  must  be  to  convey  clear  fee,  28. 

mere  ability  to  enable  others  to  convey  not  sufficient,  28. 

beneficiary's  ability  to  indirectly  terminate  trust,  28-37. 

generally,  beneficiary  not  "  person  who  can  convey,"  30. 

he  does  not  hold  title,  30. 

he  cannot  assign  or  release,  30. 

creator  of  trust  as  beneficiary,  30. 

creator-beneficiary  may  assign  interest,  30,  31,  33. 

but  trust  continues  and  trustee  holds  title,  30,  31. 

and  trustee  cannot  convey,  30,  31. 

and  trust  for  own  benefit  causes  suspension,  30,  31. 

trust  until  creditors'  bill  filed,  31. 

trust  till  judgment  entered,  31. 

indirect  acts  by  beneficiary  not  "  conveyance,"  31. 


INDEX.  383 

(References  are  to  Pages.) 

PERSONS  IN  BEING.— Continued. 

such  acts  only  condition  precedent,  31. 
creditors'  rights,  31-32. 
in  real  and  personal  trusts,  32. 

statutory  authority  to  beneficiary  to  end  trust,  33. 
beneficiary  as  remainderman,  33,  106. 
generally  no  merger,  or  termination  of  trust,  33. 
but  statute  may  provide  otherwise,  33. 
effect  of  such  statute  on  suspension,  33. 
history  of  the  statute,  33. 
power  of  Legislature  over  trusts,  23,  34,  36. 
authority  to  beneficiary  to  end  trust,  34-38. 
four  views  of  such  authority,  34-38. 
(a.)  mere  power  to  perform  condition,  suspension,  34,  35. 
(&.)  not  transfer  of  interest,  and  obviates  suspension,  35. 
(c.)  renders  trust  inoperative,  when,  35. 
(d.)  is  attempt  to  evade  statute,  and  void,  36. 

beneficiary's  inability  to  convey  cannot  be  avoided,  36. 
test  in  applying  foregoing  views,  36. 
(6.)  Number  of  "persons  in  being,"  unlimited,  37,  38. 
(7.)   When  remaindermen  need  not  be,  211. 
POSSESSION. 

mere  postponement  of,  immaterial,  76-77,  194,  213,  270, 

343. 
estate  in,  84-85. 

estate  in  alienable,  no  suspension,  85. 
vesting  in,  when  requisite,  213,  214,  233-239;  239-247. 
POSSIBILITY.    See  Must;  Contingency;  Rules. 
effect  on  suspension,  57,  58,  96,  97. 
effect  on  postponement,  210-213,  275. 
of  reverter,  96,  209. 
on  possibility,  180. 

of  illegal  exercise  of  power,  72,  73,  154. 
POSTPONEMENT  OF  VESTING,  175-249. 
(1.)  Rule  II.    Vesting.    See  Rules. 

vesting  can  be  postponed  for  statutory  period  only,  2,  176. 
Rules  I  and  II  contrasted,  1-11,  176. 

reasons  for  Rules  I,  II  and  III,  8-11,  15-16,  177-204,  214, 
215,  216. 
(2.)  Historical,  4-8,  177-204. 

theory  that  there  is  no  Rule  II,  4-11,  177,  181. 
scope  of  former  Rule  against  Perpetuities,  2-4,  177-204, 
181,  190-198. 


384  INDEX. 

(References  are  to  Pages.) 

POSTPONEMENT  OF  VESTING.— Continued. 

theory  that  it  related  to  alienability  only,  2-4,  177-204, 

181. 
theory  that  our  statutes  are  likewise  restricted,  2-4,  177. 
relation  of  Rule  against  Perpetuities  to  our  law,  2-4,  177, 

178,  181,  190-198,  200-204. 
our  statutes  on  vesting  of  remainders,  1-11,  178. 
they  make  up  our  Rule  II,  178. 
views   of   Rule   against   Perpetuities   when   our  statutes 

framed,  179,  181. 
early  English  law,  no  strict  Rule  against  Perpetuities,  179. 
why  not  then  needed,  179. 

remainder  when  could  not  be  limited  on  fee,  179. 
nor  contingent  freehold  on  term  of  years,  179. 
estates  tail,  and  remainders  thereon  could  be  barred,  179, 

184,  186. 
remainder  on  life  estate  could  be  barred,  179. 
contingent  interests  non-transferable,  179. 
needs  of  that  time  met  by  principles  other  than  the  Rule, 

179-180. 
grant  to  unborn  person,  remainder  to  his  children,  180. 
possibility  on  a  possibility,  180. 

early  history  of  rule  concerning  remoteness,  4-8,  180,  181. 
purpose  and  scope  of  Rule  against  Perpetuities,  1-16,  177- 

204. 
three  theories  on  nature  of  Rule  against  Perpetuities,  181. 
first  theory,  it  required  alienability  only,  181,  191. 
second  theory,  it  required  vesting  only,  181,  196-7. 
third  theory  ,it  required  either  vesting  or  destructibility, 

181,    182,    183,    184,    185,    186,    187,    190,    191,    192, 

193,  195,  197,  198. 
modifications  of  these  views,  182. 
theory    that    Rule    against    Perpetuities    did    not    affect 

remainders,  183,  190,  196,  197. 
relation  of  alienability,  and  vesting  as  a  means  thereto, 

183,  186,  192. 

references  to  common  law  writers  on  perpetuities,  184-198. 
vesting,  element  of  common  law  Rule  against  Perpetuities, 

184,  187,  188-195. 

vesting,  element  in  common  law  estate  tail  Rule,  184,  185, 

186. 
two  lives,  and  minority,  figured  in  both  these  rules,  185. 
analogies  and  differences  between  these  common  law  rules, 

184,  186. 


INDEX.  385 

(References  are  to  Pages.) 

POSTPONEMENT  OF  VESTING.— Continued. 

English  statute  of  1844  abolishing  contingent  remainders, 
189. 

its  subsequent  repeal,  189. 

English  statutes  rendering  contingent  and  executory  in- 
terests alienable,  190,  191. 

reasons  for  vesting  as  element  of  English  Rule  against 
Perpetuities,  192. 

objection  to  contingencies,  though  fee  alienable,  192,  193, 
194. 

complications  of  ownership  objectionable,  193. 

capricious  remoteness  incident  to  contingencies,  objection- 
able, 194. 

mere  postponement  of  possession  only,  not  objectionable, 
194. 

English  statute  against  destruction  of  remainder  by  fail- 
ure of  precedent  estate,  196. 

it  referred   only  to   those  complying  with  Rule   against 
Perpetuities,  196. 

gifts  to  classes,  remoteness,  197,  198. 
(3.)   The  general  statutory  scheme,  198-204. 

reasons  for  the  Rules  embodied  in  statutes,  8-11,  15,  16, 
177-197,  199,  201,  215,  216. 

perpetuities  caused  by  inalienability,  view  of  revisers,  198, 
199. 

they  also  provided  rules  as  to  vesting,  199,  200,  201,  203, 
204. 

remainders  not  "  destructible  "  under  Revision,  199. 

vesting  as  a  means  to  effect  alienability,  199,  200,  201. 

same  statutory  period  as  for  suspension,  201,  202. 

relation  of  the  Rules  relating  to  alienability  and  to  vest- 
ing, 202. 

Rule  II,  Vesting,  derived  from  several  statutes,  202. 

Rule  I,  Alienability,  the  more  frequently  applied,  202,  203. 
(4.)  "Remainders,"  204-210. 

Rule  II,  Vesting,  relates  only  to  "  remainders,"  204,  205. 

present  scope  of  such  remainders,  205,  206,  208,  210. 

include  conditional  limitations,  205. 

include  limitation  on  fee,  205. 

compared  with  common  law  remainders,  205. 

relation  to  expectant  estates  in  general,  206. 

Kent's  views  of  remainders  under  Revision,  206. 

Revisers'  explanatory  notes,  206,  207. 


886  INDEX. 

(References  are  to  Pages.) 

POSTPONEMENT  OF  VESTING.— Continued. 

springing  and  other  uses,  206. 

Revisers'  forms  of  definition,  207. 

other  uses  of  remainder  and  remainderman,  207. 

"  estates,"  scope  of  term,  208. 

"  estates  "  in  personal  property,  208. 

"  remainders  "  in  personal  property,  208,  265. 

future  estates  are  subjected  to  general  statutory  rules,  208, 
209. 

possibilities  of  reverter  are  not  estates,  209. 

possibilities   of  reverter  unobjectionable  under  Rule  II, 
209. 

Rule  II,  vesting,  applies  to  estates  created,  not  reserved, 
209. 

reversions  not  affected  by  Rule  II,  vesting,  209. 

reversions  said  to  be  sometimes  contingent,  209. 

they  are  expectant,  but  not  future,  estates,  209. 
(5.)  "  Within  the  statutory  period,"  210. 

means  during  or  at  end  of  period,  210. 
(6.)  "  Must  vest."    "  If  ever,"  210-213. 

meaning  of  must  in  this  connection,  210-211. 

death  of  remainderman  pending  precedent  estate,  86,  87. 
88,  91,  211,  312,  316,  332,  333. 

when  remainderman  need  not  be  person  in  being,  211. 

if  once  vests,  Rule  does  not  require  divesting,  211. 

test  is  at  time  of  creation,  211. 

provision   that  estate  must   end  after  statutory   period, 
valid,  212. 
(7.)  Must  vest  "  in  interest,"  213-214,  218,  219. 

vesting  in  interest  defined,  213. 

remainders  must  vest  in  interest  when,  213,  214. 

if  duly  vested  in  interest,  postponement  of  possession  usu- 
ally immaterial,  213. 

number  of  allowable  contingencies  unlimited,  213. 

in  certain  cases,  vesting  in  possession  required,  213,  214. 

improbability  of  contingency  immaterial,  214. 

when  vested  remainder  invalidated  by  contingent,  214. 

when  valid  and  void  separable,  214. 
(8.)  Sources  of  Rule  II,  2-11,  214-216. 

reasons  for  Rule  II,  8-11,  15-16,  177-204,  214,  215,  216. 

Rules  aimed  at  freedom,  not  restriction,  215. 
(9.)  Remainder  on  a  fee,  216-220. 

must  vest  by  end  of  statutory  period,  216-220. 


INDEX.  387 

(References  are   to  Pages.) 

POSTPONEMENT  OF  VESTING.— Continued. 

fee  or  other  less  estate  on  fee,  216. 

contingent  remainder  in  fee,  on  prior  remainder  in  fee, 

216. 
these  two  classes  distinguished,  217. 
the  second  includes  minority  after  two  lives,  217. 
remainder  on  estate  tail,  217. 

remainder  to  children  surviving  to  reach  majority,  218. 
trusts  for  persons  not  in  being  at  creation  of  estate,  218. 
test  of  validity  depends  on  time  of  creation  of  estate,  218. 
and  on  possibility  then,  of  not  vesting  in  time,  218,  219. 
(10.)  Remainder  o?i  estate  for  life,  220-228. 

must  vest  by  end  of  statutory  period,  220-228. 

successive  estates  for  life,  220. 

all  but  first  two  void,  220. 

ultimate  remainder  accelerated,  220. 

no  remainder  on  estate  pur  autre  vie,  unless  in  fee,  221. 

similar  as  to  such  estate  in  term  of  years,  221. 

estate  for  life  of  more  than  two  outsiders,  221. 

remainder  takes  effect  at  death  of  first  two,  221. 

these  rules  apply  to  legal,  not  equitable,  estates,  221,  232. 

estate  for  life  in  term  of  years,  when,  221. 

only  vested  ultimate  remainders  can  be  accelerated,  221, 

222. 
life-estates  to  tenants  in  common,  222. 
where  cross-remainders,  222. 
remainders  to  persons  in  being  cannot  impair  alienability, 

222,  223. 
cross-remainders,  when  postpone  vesting,  223. 
they  are  successive  estates,  223. 
separating  valid  from  void,  73,  214,  223,  290,  293. 
when  not  separable,  223. 

cross- remainders  though  no  tenancy  in  common,  224. 
remainder  on  life  estate  to  joint  tenants,  66-70,  224-228. 
nature  of  joint  tenancy,  66-70,  224-228. 
whether  such  estate  is  "  pur  autre  vie,"  224-228. 
estates  for  life  classified,  227. 
presumption  against  joint  tenancy,  66-71,  228. 
(11.)  Remainder  on  term  of  years,  229-231. 
must  vest  by  end  of  two  lives,  229-231. 
when  only  to  person  in  being  at  creation,  229. 
limitations  of  chattels  real,  229. 
term  of  supension  of  absolute  ownership  limited,  229. 


'6HS  INDEX. 

(References  are  to  Pages.) 

POSTPONEMENT  OF  VESTING.— Continued. 
remainder  of  freehold  or  chattel  real,  229. 
contingent  gift  to  corporation,  230. 
contingent  on  non-occurrence  of  named  event,  230. 
postponement  of  vesting  for  term  of  years,  230. 
incapacity  of  existing  corporation  causes  no  suspension, 

230. 
vesting  in  interest  in  charitable  corporation  sufficient,  230. 

See  Charity,  Gifts  for. 
(12.)  Remainder  on  estate  in  trust,  231-239. 
trustee  has  title,  231. 

trustee's  estate  a  fee,  for  life,  or  years,  231,  233. 
vesting  of  remainder  on,  by  what  statutes  required,  231, 

233,  234,  235. 
vesting  in  possession  by  end  of  statutory  period,  233,  234, 

235,  236,  237,  238,  239. 
"  remainder,"  meaning  of  in  this  connection,  236. 
trust  to  sell,  gift  of  proceeds,  sort  of  remainder,  236. 
(13.)  Remainder  on  execution  of  power,  239-247. 

power  that  obviates  suspension,  may  not  obviate  postpone- 
ment, 239-247. 
reasons  for  distinction,  239-247. 
Rule  I  deals  only  with  alienability,  240. 
if  power  makes  sale  possible,  no  suspension,  240. 
but  Rule  II,  provides  that  remainder  must  vest,  240. 
power  does  not  insure  such  vesting,  240,  241. 
postponement  of  vesting  illustrated,  242-247. 
"  children,"  meaning  of  term,  244,  245,  246. 
"  issue,"  meaning  of  term,  244. 
construction  preferred  which  supports  validity,  71,  244, 

245,  309. 
vesting,  effect  on,  of  power  to  sell,  or  convey,  247. 
(14.)  Remainder  in  default  of  appointment,  247. 
general  principles  applicable,  247. 

future  estate  limited  in  default  of  appointment,  247. 
effect  of  the  power,  on  vesting  of,  163,  166,  247. 
(15.)  Remainder  to  class,  248-249. 
contingent,  247-248. 
vested  subject  to  divesting,  248. 
void  if  not  to  vest  in  due  time,  248. 
vested  interest  when  sustained,  though  contingent  void, 

248-249. 
(16.)  Statutory  period  for  postponement,  249. 


INDEX.  389 

(References  are  to  Pages.) 

POWER.    See  Powers,  Suspension  by. 

remainder  on  execution  of,  239-247. 

obviating  suspension,  may  not  obviate  postponement,  239- 

247. 
to  convey,  obviates  suspension,  16,  17,  20,  21,  171,  172,  240, 

241. 

See  Powers,  Suspension  by;  Persons  in  Being,  (1); 
Postponement  of  Vesting,  239-247. 
codification  of  law  of  powers,  4,  5,  260,  278. 
if  purpose  illegal,  power  void,  273-277. 
effect  of,  on  vesting,  163,  166,  247. 
failure  of  purpose,  effect.     See  Purpose. 
POWERS,  SUSPENSION  BY,  147-175;  278.    See  Alienability; 
Persons  in  Being;  Personal  Property;  Suspen- 
sion; Rules;  Power. 
(1.)  Powers  defined  and  classified,  147-150. 
power  defined,  147. 
codification  of  powers,  4,  5,  260,  261. 
general  powers,  147,  148. 
special  powers,  148. 
beneficial  powers,  148. 
beneficial  powers  not  specified,  void,  148. 
general  powers  in  trust,  148. 
special  powers  in  trust,  148. 
designation  of  beneficiary,  148. 
reservation  of  powers  by  grantor,  148,  149. 
creation  of  powers,  149. 
construction  of  powers,  149. 
execution  of  powers,  149. 
termination  of  powers,  149;  see  Purpose. 
further  definitions  relating  to  powers,  149. 
when  trust  valid  as,  107. 
(2.)  Relation  of  powers  to  title,  149-150. 
two  classes  of  powers,  149. 
one  class  confers  fee  on  grantee,  149. 
the  other  retains  title  and  power  distinct,  149. 
power  to  executor  to  change  life  estate  to  fee,  150. 
(3.)  Relation  of  powers  to  suspension,  150-154. 

test  of  suspension,  absence  of  persons  to  convey,  16-38, 

150,  153. 
number  of  ways  to  effect  suspension,  75,  150. 
trusts  and  contingencies  are  two  ways,  150. 
suspension  by  instrument  executing  power,  150. 


390  INDEX. 

(References  are   to  Pages.) 

POWEES,  SUSPENSION  BY.— Continued. 

period  computed  from  creation  of  power,  150. 

power  to  sell  only  in  future,  suspension  when,  150,  151, 
152,  153. 

thus  in  a  sense  three  ways  to  cause  suspension,  151. 

these  methods  examined  and  compared,  151,  152. 

who  can  take  under  exercise  of  power,  152. 

what  can  be  given  under  such  exercise,  152. 

validity  at  time  of  creation  of  power,  the  test,  152. 

suspension  by  power  while  still  unexercised,  152. 

mere  possibility  of  unauthorized  acts  by  donee,  no  suspen- 
sion, 72,  73,  154. 

execution  in  favor  of  person  who  would  take  if  no  execu- 
tion, 154. 
(4.)  Powers  not  occasioning  suspension,  154-159. 
(a.)  beneficial  powers,  154-155. 

existence  of,  causes  no  suspension,  154,  155. 

execution  of,  may  cause  suspension,  155. 
(&.)  general  powers  to  sell  and  convey,  155. 

existence  of,  causes  no  suspension,  155. 

so  with  general  power  to  sell,  appraise  and  divide,  155. 

or  sell  and  distribute,  155. 

or  convey  absolutely  to  designated  persons,  155. 

or  appoint  among  designated  persons,  155. 
(c.)  powers  to  hold  and  manage,  76,  77,  155-156. 

existence  causes  no  suspension,  156. 

accordingly,  not  restricted  in  term,  156. 

but  if  alienability  suspended,  term  restricted,  156. 

when  trust  not  sustainable  as  power  to  manage,  156. 
(d.)  terminable  powers' to  sell,  156-158. 

conversion  directed,  election  to  take  unconverted,  156. 

when  election  may  be  exercised,  156-158. 

exercise  of  election  terminates  power,  157. 

when  beneficiary  vested  with  title,  may  convey  free  of 
power,  157. 

when  such  conveyance  annuls  power,  157. 

power  in  trust  exercisable  only  for  beneficiary,  157. 

donee  has  no  personal  interest,  1«57. 

if  exercise  for  beneficiary  impossible,  power  fails,  157. 

when  beneficiary  of  power  may  release  to  vested  owner, 
157. 

powers  annullable  by  beneficiary,  no  suspension,  157,  158. 

doctrine  of  election  founded  on  presumption  of  intent,  158. 


INDEX.  391 

(References  are   to  Pages.) 

POWERS,  SUSPENSION  BY.— Continued. 

whether  minor  may  elect  to  end  power,  158. 
even  if  not,  apparently  no  suspension,  when,  158. 
inalienability  by  infancy  causes  no  suspension,  24,  158. 
(e.)  revocable  powers,  158-159. 

powers  not  revocable  unless  authority  reserved,  158-159. 
when  revocable,  no  suspension,  159. 
(5.)  Powers  that  do  occasion  suspension,  159-171. 
(a.)  powers  of  sale,  proceeds  to  trustee,  159-161. 

if  the  trust  must  occasion  suspension,  power  co-operates, 

159,  160. 
power  to  sell,  may  obviate  suspension  as  to  land,  160. 
but  trust  occasions  suspension  as  to  proceeds,  160. 
in  such  cases  suspension  really  caused  by  the  trust,  160, 

161. 
to  be  valid,  must  be  duly  measured,  160. 
(b.)  powers  of  sale,  proceeds  to  persons  not  in  being,  161, 

162. 
occasion  suspension,  161. 

suspension  really  caused  by  contingency,  161. 
if  persons  entitled  all  in  being,  no  suspension,  161,  162. 
if  persons  yet  unborn  may  be  entitled,  suspension,  162. 
vesting,  subject  to  divesting  in  favor  of  unborn  persons, 

162. 
if  duly  measured,  such  suspension  valid,  162. 
(c.)  imperative  powers  to  appoint,  162-165. 
when  occasion  suspension,  162. 
no  persons  in  being  to  convey,  162,  163. 
imperative  and  discretionary  powers,  163. 
when  possible  appointees  have  no  present  rights,  163. 
when  court  can  compel  execution,  163. 
but  cannot  control  discretion,  163. 
term  of  suspension  not  duly  measured,  void,  163. 
some  objects  of  power  not  within  limits,  effect,  163. 
exclusive  appointment,  163. 
effect  of  power,  upon  vesting,  163. 
if  donee  chooses  to  execute  illegally,   appointment  void, 

164. 
if  term  of  suspension  duly  measured,  valid,  164. 
suspension  really  caused  by  contingency  or  trust,  164. 
(d.)  imperative  powers  to  convey,  165-168. 
no  selection  by  donee,  165. 
conveyance  to  indicated  group,  165. 


392  INDEX. 

(References  are   to  Pages.) 

POWERS,  SUSPENSION  BY.— Continued. 
when  future  interest  contingent,  165. 
survivorship  essential  to  taking,  165. 
when  interest  vested  defeasibly,  165-166. 
effect  of  power  upon  vesting,  166. 
intent  controls,  166. 

if  grantees  named,  power  consistent  with  vesting,  166. 
when  vesting  in  possession  though  no  conveyance,  166, 

167. 
suspension  in  this  group  really  caused  by  contingency,  167. 
if  duly  limited,  not  illegal,  168. 
so  imperative  power  to  convey  to  trustee,  167. 
when  causes  suspension,  167. 
remainder  to  one,  and  if  deceased,  to  issue,  no  necessary 

suspension,  167. 
intent  may  be  for  issue  to  take  by  succession,  167. 
if  so,  first  taker  could  dispose  of  all  absolutely,  167. 
and  issue  would  have  no  independent  rights,  167. 
(e.)  non-terminable  future  power  of  sale,  168-171. 

if  exercise  in  meantime  prohibited,  suspension,  168,  169. 

no  election  permitted,  to  take  unsold,  168,  169. 

every  power  must  substantially  comply  with  its  conditions, 

168,  169. 
intentions  of  grantor  must  be  observed,  168. 
exceptions,  168. 

time  of  exercise  of  power,  when  material,  169. 
unlawful  restriction  on  exercise  of  power,  when  separable, 

170. 
grounds  of  suspension  by  this  group  examined,  170. 
statute  no  longer  forbids  suspension  by  "  any  limitation 

whatever,"  170. 
if  power  for  illegal  purpose,  when  suspension,  171. 
power  for  illegal  purpose  is  void,  171. 
if  suspension  in  this  group,  caused  by  power  itself,  171. 
(6.)  Powers  that  obviate  suspension,  171-172. 

illustration,  111,  160,  171-172,  239-247,  269-277. 
power  to  sell  may  obviate  suspension  by  trust,  171-172. 
and  yet  not  obviate  postponement  of  vesting,  239-247. 
(7.)  Statutory  period  as  to  powers,  172-175. 

time  of  suspension  computed  from  creation  of  power,  172- 

175. 
creation  of  power  defined,  172. 
tests  of  validity,  172-175. 


INDEX.  393 

(References  are  to  Pages.) 

POWEES,  SUSPENSION  BY.— Continued. 

test  by  reading  into  original  instrument  not  always  cor- 
rect, 173-174. 

who  may  take  under  a  power,  174. 

validity  if  at  creation  of  power  as  test,  174. 

absolute  power  of  disposition  confers  fee,  174-175. 

thus  the  power  disappears,  175. 

in  such  case,  test  by  date  of  original  instrument  inappli- 
cable, 175. 

suspension  by  donee  measured  from  its  own  date,  175. 

gift  to  one,  remainder  over  of  "  what  may  remain,"  175. 
PRESUMPTIONS.    See  Construction. 

none  that  scheme  is  illegal,  72,  73. 
PROMISSORY  NOTE. 

payable  after  death,  no  suspension,  82. 
PURPOSE.    See  Intent;  Termination. 

failure  of,  effect  on  trust,  43,  260,  267. 

failure  of,  effect  on  power,  44,  157. 

illegality  of,  effect,  20,  21,  171,  273-277. 

purpose  of  Rules,  See  Rules,  (7). 


RELEASE.    See  Assignment. 

is  a  conveyance,  17,  18. 

releasable  restriction,  no  suspension,  81. 
RELIGIOUS.    See  Charity. 
REMAIN. 

gift  over  of  what  may  remain,  175. 
REMAINDERS.    See  Postponement  of  Vesting;  Contingencies, 
Suspension    bv;    Personal    Property;    Rules; 
Construction;  Vested  and  Contingent;  Future 
Estates;  Tenancy. 

what  are,  205,  206,  208,  210,  319-343. 

at  common  law,  205,  313-319,  329,  330. 

vested  in  interest,  86. 

when  vests  in  possession,  86. 

vesting  and  divesting,  85-88. 

beneficiary  of  trust  may  own  remainder,  33,  106. 

third  person  may  own  remainder  after  trust,  106. 

remainder  to  one,  if  deceased  to  issue,  167. 

gift  to  one,  remainder  over  of  "  what  may  remain,"  175. 

remainder  on  a  fee,  179. 


394  INDEX. 

(References  are  to  Pages.) 

'REMAINDERS.— Continued. 

remainder  on  former  estate  tail,  179,  184,  186. 
freehold  on  term  of  years,  179. 

remainder  on  life  estate  formerly  could  be  barred,  179. 
remainder  to  children  of  unborn  person,  180. 
destruction  of  remainder  by  failure  of  precedent  estate, 

196. 
change  in  that  law,  196,  199. 
remainders  under  Rule  II,  postponement  of  vesting,  204- 

210. 
scope  of  the  term,  205,  206,  208,  210. 
include  conditional  limitation,  205. 
include  limitation  on  fee,  205. 
remainders  in  personal  property,  208,  259,  265. 
death  of  remainderman  pending  precedent  estate,  86,  87, 

88,  91,  211,  312,  316,  332,  333. 
when  remainderman  need  not  be  person  in  being,  211.'' 
when  remainders  must  vest  in  interest,  175-249. 
if  vested  in  interest,  postponement  of  possession  usually 

immaterial,  213,  214. 
vesting  of  remainder  on  fee,  216-220. 
vesting  of  remainder  on  life  estate,  220-228. 
successive  life  estates,  result,  220,  221,  232,  305-307. 
remainder  accelerated  if  vested,  220,  222,  305,  307. 
remainder  on  estate  pur  autre  vie,  221,  224-228. 
in  term  of  years,  221. 

remainder  on  estate  to  tenants  in  common,  222,  223. 
cross-remainders,  223,  224. 
remainder  after  joint  tenancy,  224-228. 
remainder  on  term  of  years,  229-231. 
remainder  on  estate  in  trust,  231-239. 
remainder  on  execution  of  power,  239-247. 
remainder  in  default  of  appointment,  247. 
remainder  to  class,  248-249. 
remainder  in  personal  property,  analogy  to  real  property, 

208,  259-261,  265. 
"  remainder  "  exists  in  both  kinds  of  property,  265. 
vested    and    contingent,    distinction    same,    personal    and 

real,  259,  341. 
personal,  remainder  when  accelerated,  259,  305-307. 
personal,  must  vest  in  two  lives,  263,  264. 
alternative,  one  valid,  one  void,  when  can  be  "  split,"  296- 

304. 


INDEX.  395 

(References  are  to  Pages.) 

REMAINDERS.— Continued. 

"  heirs  "  as  remaindermen,  319-340. 

bequest  for  life,  gift  over  of  "  what  may  remain,"  175. 
REMOTENESS.       See     Postponement     of     Vesting;     Rules; 
Remainders;     Personal    Property,     Statutory 
Period. 
RENEWALS. 

perpetual,  no  suspension,  83. 

perpetual,  no  postponement  of  vesting,  83. 
RENTS  AND  PROFITS. 

See  Trust,  Suspension  by. 

leases,  118-127. 

satisfaction  of  mortgage  from,  120-123. 

payment  of  annuities  from,  123-127. 

trust  to  apply,  statutory  period  for,  133-143. 

trust  to  accumulate,  statutory  period,  127-133. 

disposition  of,  136-143. 

undisposed  of,  who  takes,  145-146,  260. 

next  eventual  estate,  persons  entitled  to,  145,  146,  356. 
REPUGNANCY.    See  Construction. 

effect,  78. 
RESTRAINTS 

on  alienation,  75-83. 

See   Suspension;   Persons   in  Being;   Alienability; 
Rules. 
REVERSION 

expectant  but  not  future  estate,  209. 

causes  no  suspension,  85,  209. 

subject  to  trust,  106. 

causes  no  postponement  of  vesting,  209. 

whether  ever  contingent,  209. 
REVOCATION, 

reserved  power  of,  27,  28,  59. 

not  "  in  contravention,"  28. 

in  personal  property  trust,  28,  143,  144. 

on  consent  of  persons  interested,  144,  268-269. 

of  powers,  158-159. 
RIGHT  OF  ENTRY,  96. 
RULE  IN  SHELLEY'S  CASE. 

abolished,  320. 
RULES.      See    Alienability;    Contingencies,    Suspension    by; 
Trust,  Suspension  by;  Powers,  Suspension  by; 
Postponement  of  Vesting;  Persons  in  Being; 


396  INDEX. 

(References  are  to  Pages.) 

RULES. — Continued. 

Creation    of   the    Estate;    Statutory    Period; 
Personal  Property. 
(1.)  In  general. 

two  Rules  for  realty,  1,  84-97,  108-118,  150-154, 176. 

one  Rule  for  personalty,  1,  250. 
(2.)  Rule  I,  alienability,  1,  84-97,  108-118,  150-154. 

term  of  suspension,  1,  39-97. 

scope,  1-4. 
(3.)  Rule  II,  vesting,  2,  175-249. 

term  of  postponement,  2,  249. 

applies  to  remainders,  2,  204-210. 

scope,  1-4. 
(4.)  Rule  III,  absolute  ownership,  2,  250-278. 

term  of  suspension,  2,  250,  251,  253,  278. 

scope,  2-4. 
(5.)  Scope  of  Rules,  2-4,  75-76,  83,  177-204. 

illustrations,  2-4. 

alienability  and  vesting,  2-4. 

tests  of  suspension  and  postponement,  2-4. 

mutual  relations  of  Rules,  3. 
(6.)  Historical,  4-8,  177-204. 

relation  of  Rules  to  common  law,  4-8,  177-204,  215. 

powers,  codified,  4-5. 

trusts,  all  abolished  except  four,  4,  100,  101,  279. 

later,  charity  trusts  revived,  4,  281,  284,  285. 

personal  property  trusts,  4-5,  279,  283. 

Rules  represent  codification,  6. 

"  perpetuities  "  at  common  law,  6,  177-204. 

"perpetuities"  and  alienability,  6,  177-204. 

"  perpetuities  "  and  vesting,  6,  177-204. 

"  remoteness  "  of  vesting,  6,  177-204. 

views  of  different  authorities,  7,  177-204. 

"  perpetuities  "  in  New  York,  7,  198-204. 

term  not  used  in  statutes,  7. 

except  as  to  cemetery  trusts,  285,  356. 

charities,  relation  of  Rules  to,  281-285. 
(7.)  Purposes  of  Rules,  8-11,  15-16,  177-197, 198-204,  215. 

public  policy,  8,  215. 

Rule  I,  8-9. 

to  limit  term  of  inalienability,  8. 

to  render  property  marketable,  8,  215. 

and  capable  of  disposition,  8. 


INDEX.  397 

(References  are  to  Pages.) 

RULES. — Continued. 

bad  effects  if  no  Rules,  8,  192-195,  201,  215. 
reasonable  restrictions,  4-9,  15-16,  177-204,  215,  216. 
Rule  II,  9-11,  181-198,  215. 
to  prevent  waste  of  values,  9. 
to  protect  minors,  9. 
to  protect  inexperienced  persons,  9. 
to  prevent  litigation,  9. 

to  prevent  complications  of  ownership,  192-194,  215. 
to  avoid  injury  to  beneficiaries,  10. 
to  encourage  improvements,  10,  215. 
to  facilitate  administration  of  law,  10. 
law  always  favored  vesting,  10,  311. 
see  in  general  §§  31-36,  and  177-204,  215. 
Rule    III,    purposes    are    similar,    11.      See    Personal 
Property. 


SEPARABILITY,  290-307. 

(1.)   General  principles,  290-293. 

invalidity  of  part,  when  not  fatal  to  all,  73,  214,  223,  290, 

293. 
distinction   between   separable   and   inseparable    schemes, 

290. 
if  inseparable,  and  part  void,  all  fails,  290,  293. 
if  separable,  void  may  be  cut  out,  291. 
whether  personal  property  more  readily  severable,  291,  292. 
though  valid  and  void  in  one  trust,  may  be  separable,  292, 

293. 
effect  of  events  when  or  after  instrument  takes  effect,  292. 
election  by  widow  to  take  dower,  292. 
election  to  take  under  will  or  otherwise,  292,  356. 
no  separation  of  valid  and  void  if  main  intent  frustrated, 

293. 
bearing  of  fact  that  given  contingency  does  not  actually 

occur,  293. 
testator  may  provide  rules,  in  case  of  partial  invalidity, 

293. 
(2.)   Alternative  future  dispositions,  294-307. 
invalidity  of  one,  effect  on  other,  294. 
bearing  of  rule  that  validity  must  not  depend  on  future 

events,  294. 
that  rule  stated  and  applied,  294,  295. 


398  INDEX. 

(References  are  to  Pages.) 

SEPAEABILITY.— Continued. 

validity  of  future  disposition,  when  court  may  defer  de- 
cision, 295. 
contingencies  with  double  aspect,  295. 
(3.)  Simple  alternative  contingencies,  296. 
(4.)  Involved  alternative  contingencies,  296-304. 

when  grantor  or  testator  splits  the  gift,  297-304. 

when  the  court  cannot  split  the  gift,  297-304. 

illustrations,  298-304. 

when  event  without  limit  may  involve  one  within,  298. 

if  he  has  no  son  to  attain  25,  void,  298,  300,  302. 

no  son  to  attain  25,  or  none  at  all,  valid,  298,  300,  302. 

English  distinction,  according  as  future  gift  is  remainder 

or  not,  304. 
doctrine  of  splitting,  no  application  to  separate  shares, 
304. 
(5.)   Contingencies  with  alternative  application,  304-307. 

uncertainty  as  to  which  share  affected  by  invalidity,  304- 

307. 
test,  whether  uncertainty  may  exceed  statutory  period, 

304-307. 
contingent  remainder,  when  not  accelerated,  305-307. 
successive  life  estates,  305-307. 
SEPARATE  PERIODS 

for  separate  shares,  64-71. 
division  and  sub-division,  64-66,  69. 
SHARES. 

separate  period  for  each  share,  64-71. 
separating  valid  from  void,  290-307. 
SPLITTING 

of  gift,  by  testator,  or  by  court,  when,  296-304. 
SPRINGING  USES,  206. 

STATUTORY  PERIOD,  38-75.     See  Creation  of  the  Estate; 
Rules;    Postponement    of    Vesting;    Personal 
Property  ;  Alienability. 
(1.)  In  general,  38. 

same  for  suspension  and  postponement,  38,  176,  201,  202. 
not  the  same  for  realty  and  personalty,  38. 
(2.)  Two  lives  in  being,  39-97,  185. 
(3.)  Scope  of  term,  39,  210. 
(4.)  Two  lives  the  necessary  measure,  40-42. 

except  for  further  minority  in  certain  cases,  40. 
what  at  common  law,  185. 


INDEX.  399 

(References  are   to  Pages.) 

STATUTORY  PERIOD.— Continued. 

suspension  for  "  statutory  term,"  naming  no  lives,  void,  40. 

term  of  years,  illegal  measure,  40,  41. 

suspension,  no  lives  named,  void,  40. 

none  too  old  to  have  children,  40. 

suspension  until  partition,  void,  41. 

or  until  mortgage  paid,  void,  41. 

or  until  fixed  date,  void,  41. 

or  for  more  lives  than  two,  41. 

or  during  life  of  unborn  person,  41. 

or  until  majority  of  more  than  two,  42. 

or  after  two  lives,  42. 

or  in  perpetuity,  42. 

or  for  one  life  plus  one  moment,  42. 

suspension  until  judicial  decision,  effect,  42. 

decision  of  court  does  not  create  validity,  42. 

void  and  valid  alternatives,  42. 

cessation  of  purpose,  terminates  trust,  43,  44,  59,  60,  115, 
116,  142,  143,  260,  267. 
(5.)  Designation  of  lives,  43-45. 

how  to  be  designated,  43. 

implied  limitation  to  two  lives  sufficient,  43,  59,  60. 

thus  trust  for  two,  ends  with  their  lives,  43. 

trust  not  ended  by  death  of  trustee,  43. 

nor  by  his  resignation  or  removal,  43. 

nor  by  conveyance  to  beneficiary,  43. 

trust  created  to  end  with  trustee's  life,  43. 

purpose  may  fail  before  trust  begins,  43. 

failure  of  purpose  when  presumed,  43. 

presumption  in  general  assignments,  43. 

when  lives  must  be  designated,  44. 

second  life  uncertain  while  first  continues,  44. 
(4.)  Any  two  lives,  45. 

any  lives  may  measure  term,  45. 
(5.)  Part  of  life,  is  a  life,  45-46. 

term  may  be  shorter  than  two  lives,  45-46. 

part  of  life,  counts  as  a  "  life,"  46. 
(6.)  Minority  is  a  life,  46-48. 

a  minority  counts  as  a  life,  46. 

illustrations  and  exceptions,  46-48. 

minority  as  a  "  life  in  being,"  47. 

infant  en  ventre  sa  mere,  47,  48,  130. 

minority  means  or  until  earlier  death,  47. 


400  INDEX. 

(References  are  to  Pages.) 

STATUTOEY  PEEIOD.— Continued. 

additional  minority  after  two  lives,  51-57. 
(7.)  Period  of  gestation,  48. 

relation  to  suspension  or  postponement,  48,  54. 

posthumous  children,  49. 
(8.)  Life  of  "  eldest "  or  "  youngest"  49-50. 

different  meanings  of  terms,  49. 

rule  of  construction,  50. 

facts  at  creation  of  estate  control,  39,  50. 
(9.)  Life  of  wife,  widow,  husband,  50-51. 

rule  of  construction,  50,  51. 

widow  as  person  in  being,  51. 
(10.)  Additional  term  of  minority,  51-57. 

when  allowed  for  suspension  or  postponement,  52. 

meaning  of  "  minority,"  52. 

different  theories  stated,  52-57. 

in  trusts  for  accumulation,  52. 

in  trusts  for  application  of  rents,  52. 

alternative  remainders,  53. 

one  actual  infancy  intended,  54-55. 

remainder  limited   on   "  first "   remainder,   54. 

minor  as  "  person  in  being,"  55. 
(11.)  Statutory  requirement  is  imperative,  57-58. 

term  must  be  certain  to  end  in  due  time,  57. 

not  enough  that  it  may  do  so,  57. 

validity  depends  on  what  might  happen,  57. 

not  on  what  does  actually  happen,  57. 

meaning  of  this  principle,  61-62. 
See  Must. 
(12.)  Subordinate  measures  of  period,  58-62. 

when  allowable,  if  term  duly  limited,  58. 

thus,  for  joint  lives  of  three,  59. 

period  less  than  two  lives,  59. 

reservation  of  power  to  revoke,  27,  28,  59. 

terminable  if  any  "  interference,"  24,  59. 

or  by  trustee  on  certain  events,  59. 

failure  of  essential  feature  ends  trust,  43,  44,  59,  60,  115, 
116,  142,  143,  260,  267. 

personal  property,  59. 

illustrations  of  valid  and  void  double  measures,   60-62, 
356. 
(13.)  Alternative  lives,  62-63. 
(14.)  Successive  suspensions,  63. 


INDEX.  401 

(References  are  to  Pages.) 

STATUTORY  "PERIOD.— Continued. 

when  allowable  by  separate  instruments,  63. 

when  not,  63. 
(15.)   Separate  periods  for  separate  shares,  64-71. 

separate  suspension  for  each  share,  64-71. 

scope  and  illustrations,  64-71. 

division  and  subdivision,  64-66. 

tenancy  in  common,  66,  222. 

joint  tenancy,  66,  224-228. 

distinction  as  affecting-  suspension,  66. 

presumption  as  to  tenancy,  66-71,  228. 

scope  and  illustrations,  66-71. 

applies  to  realty  and  personalty,  67,  70. 

methods  of  effecting  separation,  68. 

cross-remainders  of  shares,  68-69. 

re-subdivision  of  shares,  69. 

law  favors  construction  involving  validity,  71,  309. 

trustee  tenant  in  common  with  owners,  71. 
(16.)  Number  of  beneficiaries  not  limited,  71-72. 

no  restriction  on  number,  71. 

need  not  be  in  being  at  creation  of  estate,  71. 

use  may  be  shifted  during  term,  71. 
(17.)  Illegal  term  is  not  presumed,  72-73. 

facts  causing  invalidity  not  assumed,  72. 

such  facts  must  be  proved,  72. 

thus  minorities,  or  given  ages,  not  so  assumed,  72. 

term  not  prolonged,  by  inference,  to  illegal  extent,  72. 

power  not  requiring  illegality,  not  assumed  void,  72,  73, 
154. 

but  assumed  to  be  power  to  do  lawful  act,  72,  73. 

if  exercise  of  power  illegal,  valid  portions  when  saved,  73, 
290-307. 

too  extensive  exercise  of  power,  73. 

imperative  and  discretionary  powers,  73. 
(18.)  Statutory  period  for  contingencies,  73. 
(19.)   Statutory  period  for  trusts  to  apply,  133-143. 
(20.)  Statutory  period  for  trusts  to  accumulate,  127-133. 
(21.)   Statutory  period  as  to  powers,  172-175. 
(22.)  Statutory  period  as  to  chattels  real,  74. 
(23.)   Statutory  period  as  to  rents  and  profits,  74. 
(24.)  Statutory  period  for  postponement  of  vesting,  249. 
(25.)  Statutory  period  as  to  personal  property,  278. 
(26.)   Certain  dispositions  not  affected,  75-83;  96-97;  118-127; 
240,  241. 


402  INDEX. 

(References  are   to  Pages.) 

STATUTORY  PERIOD.— Continued. 

absence  of  "  persons  in  being,"  when,  75. 

only  three  causes  for  such  absence,  75,  150. 

sometimes  said  to  be  only  two  causes,  75,  150. 

if  no  suspension,  Rule  I  inapplicable,  75-76,  83. 

if  no  postponement  of  vesting,  Rule  II  inapplicable,  75- 

76,  83. 
if  no  suspension  of  ownership,  Rule  III  inapplicable,  75- 

76,  83. 
(a.)  mere  postponed  possession,  no  suspension,  76-77.     See 

Possession. 
this  applies  to  realty  and  personalty,  76. 
also  to  estates  vested  in  enjoyment,  76. 
and  to  estates  vested  in  interest,  76-77. 
mere  power  to  withhold  possession,  no  suspension,  76,  155, 

156. 
in  such  cases,  no  limit  to  term,  76. 
any  resulting  invalidity,  not  due  to  suspension,  77. 
(Z>.)  trust  to  pay  principal  and  income,  no  suspension,  77. 
such  a  trust  involves  alienability  and  vesting,  77. 
essential  elements  of  absolute  ownership,  77. 
(c.)  absolute  transfer,  prohibiting  alienation,  78-81. 
effect  of  prohibition  upon  suspension,  78. 
such  condition,  imposed  on  fee,  void,  78. 
effect  of  partial  restraints,  on  alienability,  78. 
when  such  conditions  repugnant,  78. 
invalidity  for  repugnancy,  effect,  79. 
conditions  when  releasable,  effect,  79. 
if  no  persons  in  being  to  release  them,  effect,  79. 
absolute  devise  not  reduced  by  doubtful  later  words,  80, 

310. 
scope  of  this  principle,  80. 

fee  to  one,  power  of  sale  to  another,  no  suspension,  80. 
restrictions  on  sale  of  terms  for  life  or  years,  80. 
mere  prohibition  on  alienation,  effect,  80. 
unless  alienation  impossible,  no  suspension,  80. 
in  such  cases  grantor  may  release,  81. 
releasable  restriction,  no  suspension,  81. 
existence  of  "  persons  "  to  convey,  obviates  suspension,  81. 
under  Rule  I,  immaterial  who  can  alien,  81. 
if  alienable,  immaterial  by  whom,  81. 
(d.)  partnership,  funds  to  remain  in,  after  death,  81. 
if  vested  and  alienable,  no  suspension,  81. 


INDEX.  403 

(References  are  to  Pages.) 

STATUTORY  PERIOD.— Continued. 

(e.)   agreement  to  deposit  stock  for  a  term,  82. 

if  vested  and  alienable,  no  suspension  or  postponement,  82. 
so  with  common  fund  held  by  trust  company,  82. 
(f.)  intestacy  causes  no  suspension,  82. 
(g.)  promissory  note  payable  after  death,  82. 
here  no  property  inalienable  or  contingent,  82. 
covenant  for  perpetual  renewals,  no  suspension,  83. 
same,  no  postponement  of  vesting,  83. 
(h.)  right  of  entry;  possibility  of  reverter,  96. 
(t.)  options;  mortgages,  96-97. 
(;*.)  other  illustrations,  96,  97,  118-127,  240,  241. 
STATUTORY  SALES. 

effect  on  suspension,  23. 
SUBORDINATE  MEASURES  OF  TERM. 

when  allowable,  58-62. 
SUCCESSIVE  SUSPENSIONS 

by  separate  instruments,  63. 
SURVIVING.     See   Statutory  Period,    (8) ;   Postponement  of 

Vesting  ;   Separability. 
SUSPENSION.      See    Rules;    Contingencies,    Suspension    by; 
Trust,  Suspension  by;  Powers,  Suspension  by; 
Alienability;   Persons  in   Being;    Creation   of 
the    Estate;    Personal    Property;     Charity; 
Statutory  Period. 
Rule  I,  alienability,  1,  84-97,  108-118,  150-154,  250-278. 
•       illustrations,  2-4,  18-19. 
historical,  4-8. 
purpose  of  Rule  concerning,  8-11,  15. 

See  Rules  (7). 
three  senses  of  suspension,  13-16. 
meaning  of  inalienability,  13,  16-38. 
effect  of  power  to  sell,  19-22. 
statutory  period  for  suspension,  38,  39-83. 
when  no  suspension,  75-83,  96,  97,  240-241. 
successive  suspensions,  63. 

suspension  by  contingencies,  84-97,  161,  164,  167. 
suspension  by  trusts,  98-146,  160,  161,  164. 
suspension  by  powers,  147-175. 
suspension,  personal  property,  250-278. 
statutory  period,  38-83. 
rules  of  construction,  308-347. 
how  many  ways  to  effect  suspension,  75,  150. 


404  INDEX. 

(References  are  to  Pages.) 

TAIL,  ESTATE  IN  FEE 

could  be  barred,  179,  184,  186. 

remainder  on,  217,  345. 

remainder  on,  could  be  barred,  179,  184,  186. 

common  law  rule  as  to  vesting  of,  184,  185,  186. 

estates  tail  abolished,  345. 

bearing  of  statute  as  to  remainder  on,  345. 
TENANCY. 

severalty,  common,  joint,  64-71,  224-228. 

bearing  on  suspension  or  postponement,  66,  224-228. 

presumption  as  to,  66-71,  228,  309. 

applies  to  realty  and  personalty,  67,  70,  259. 

trustee  tenant  in  common  with  others,  71. 
TERM.    See  Rules;  Statutory  Period;  Creation  of  the  Estate; 
Personal  Property. 

of  suspension  or  postponement,  40-60. 

separate  for  separate  shares,  64-71. 
TERMINATION. 

when  purpose  ceases,  trust  or  power  ends,  43,  44,  59,  60, 
115,  116,  142,  143,  260,  267. 
TRANSFER. 

See  Assignment;  Convey;  Alienability. 
TRUST. 

See  Trust,  Suspension  by. 

passive,  102. 

secret,  102. 

implied,  resulting,  102. 

for  married  women,  102 

future,  111. 

precatory  words,  102. 

which  trusts  cause  suspension,  103,  109,  110. 

remainder  on  estate  in,  must  vest  when,  231-239. 

ceases  when  purpose  ends,  43,  44,  59,  60,  115,  116,  142,  143, 
260,  267. 

mere  existence  of,  causes  no  suspension,  271-277. 

personal  property,  266-277. 

for  charity,  See  Charity. 
TRUST,  SUSPENSION  BY,  98-146;  266-277.    See  Trust. 
(1.)  In  general. 

Revisers'  explanation  of  inalienability,  98. 

express  trusts  may  occasion  suspension,  98,  110. 

not  every  express  trust  does  so,  98,  110. 

test  is  absence  of  "  persons  in  being,"  99,  110. 


INDEX.  405 

(References  are  to  Pages.) 

TKUST,  SUSPENSION  BY.— Continued. 

persons  in  being  who  cannot  convey,  99,  110. 

all  trusts  abolished  except  four,  4. 

except  trusts  in  personal  property,  4. 

creation  and  declaration  of  trusts,  99-100. 

declaration,  personal  property,  100. 

four  classes  of  express  trusts,  beside  charities,  100. 

the  statutory  classification,  100. 

to  sell  for  creditors,  100,  110. 

to  sell,  mortgage  or  lease,  100,  110. 

for  annuitants,  other  legatees,  100,  110. 

or  to  satisfy  charges,  100,  110. 

to  receive  and  apply  rents,  100,  110. 

to  receive  and  accumulate  rents,  100,  110. 

first  three  classes  for  benefit  of  any  persons,  100. 

fourth  class  for  minors  only,  100,  115,  128. 

essential  elements  of  express  trusts,  100-101. 

non-essentials,  101. 

trusts  not  authorized  by  statute,  abolished,  100-101,  279. 

trusts  for  other  purposes,  no  title  in  trustee,  101. 

may  be  valid  as  power,  101. 

but  not  to  validate  void  suspension,  102. 

passive  trusts,  102. 

secret  trusts,  102. 

implied,  resulting  trusts,  102. 

trusts  for  married  women,  102. 

future  trusts,  111. 

precatory  words,  102. 

two  of  the  authorized  classes,  suspension,  103,  109,  110. 

the  other  two,  no  suspension,  103,  109,  110,  121. 

trust  ceases  when  purpose  ends,  43,  44,  59,  60,  115,  116, 

142,  143,  260,  267. 
(2.)   Trustee  and  beneficiary,  103-108. 

sales  by  trustee,  in  contravention  of  trust,  void,  103,  109, 

110. 
mortgages,  sales,  leases,  etc.,  with  court  approval,  103. 
power  of  court  does  not  obviate  suspension,  103. 
beneficiary    under    certain    trusts,    cannot    transfer,    103, 

111-118. 
under  others,  he  can,  103,  111-118. 
trusts  created  prior  to  statute,  103. 
if  trustee  and  beneficiary  incapacitated,  suspension,  104, 

111-118. 


406  INDEX. 

(References  are  to  Pages.) 

TRUST,  SUSPENSION  BY. —Continued. 

title  in  trustee,  subject  to  trust,  104. 
beneficiary  has  no  title  to  trust  property,  104,  107. 
beneficiary  may  enforce  performance,  104,  107,  108. 
aliens  as  trustees,  105. 
trustee  only  takes  the  trust  estate,  105. 
in  other  respects  title  may  be  elsewhere,  105. 
beneficiary  may  be  vested  remainderman,  33,  106. 
in  such  case,  no  merger,  106. 
so  in  personal  property,  106. 
remainderman  may  be  third  party,  106. 
reversionary  interests,  subject  to  trust,  106. 
power  to  convey  at  end  of  trust  term,  107. 
trustee  may  have  fee,  while  trust  lasts,  107. 
devise  to  sell  or  mortgage,  power  to  receive  rents,  107. 
if  no  such  power,  no  title  in  trustee,  107. 
but  trust  valid  as  power,  107. 
in  such  case  title  passes  to  heirs  or  devisees,  107. 
what  rule  applicable  to  grants,  107. 
creator  of  trust  may  be  trustee,  107. 

real  creator  may  not  be  person  executing  instrument,  107. 
indefiniteness  of  beneficiaries,  108. 
same  person  as  trustee  and  beneficiary,  108. 
receipt  of  rents  by  grantor,  effect  on  validity,  108. 
actual  property  right  under  trust,  in  beneficiary,  108. 
trustee  has  no  property  right,  for  himself,  108. 
(3.)   What  trusts  occasion  suspension,  108-118,  160,  161,  164. 

test,  no  "  persons  in  being,"  109. 
(4.)  Trustee  cannot  sell  in  contravention  of  trust,  103,  109. 
if  conveyance  not  in  contravention,  not  void,  109. 
two  classes  of  trusts  cause  suspension,  103,  109,  110,  121. 
the  other  two  do  not,  103,  109,  110,  121. 
trusts  to  sell,  or  mortgage,  or  lease,  primary  purpose,  109, 

121. 
in  such  cases,  grantee's  duty  imperative,  109. 
and  discretionary  power  insufficient,  110. 
and  no  suspension  results,  110. 

trust  to  sell,  when  may  aid  in  creating  suspension,  110. 
trusts  to  receive  and   apply,  or  accumulate,   suspension, 

110,  121. 
but  accompanying  trust  or  power  may  obviate  suspension, 

111. 
future  trusts  may  occasion  suspension,  111. 


INDEX.  407 

(References  are  to  Pages.) 

TRUST,  SUSPENSION  BY.— Continued. 

(5.)  Restrictions  on  transfers  by  beneficiary,  111-118. 
effect  in  creating  suspension,  103,  104,  111. 
power  to  transfer,  by  ending  purpose,  might  end  trust, 

111,  112. 
assignability  by  beneficiary,   and  alienability  by  trustee, 

usually  go  together,  112. 
statute  on  beneficiary's  inability  to  transfer,  103,  112. 
"  sum  in  gross,"  under  Revised  Statutes,  112. 
application  of  statute  to  four  trust  classes,  112,  113. 
trusts   to    sell,   or   to   mortgage,    or   to    lease,   beneficiary 

may  assign,  113. 
trusts    to    receive    and    apply    rents,    beneficiary    cannot 

assign,  113. 
trusts   to   accumulate,  beneficiary's  right  to   assign   con- 
sidered, 113-118. 
under  such  trusts,  beneficial  rights  not  assignable,  113- 

118. 
such  was  the  rule  under  Revised  Statutes,  114. 
commissioners  of  revision  intended  no  change,  114. 
non-assignability   under   trusts    to    "  apply,"    includes   to 

"  accumulate,"  114. 
thus  "  to  apply  "  is  satisfied  by  direction  to  "  pay,"  115. 
trust  to  pay  quarterly,  or  annually,  unassignable,  115. 
assignability   by  beneficiary   of   accumulation,   would   be 

inconsistent,  115. 
such  a  trust  only  for  infants,  100,  115,  128. 
if  assignable,  then  accumulation  for  adult,  115. 
or  else  trust  would  cease,  and  no  suspension,  115,  116. 
creditors'  rights,  trust  for  accumulation,  116. 
court  authority  to  apply  accumulations,  when,  116,  117. 
(6.)  "Leases"  under  express  trusts,  118-127. 

which  trusts  involve  power  to  lease,  118-120. 

when  power  to  lease  implied,  118. 

"  lease  "  to  pay  annuities,  118-127. 

"  lease  "  to  pay  other  legacies,  118-127. 

"  lease  "  to  satisfy  charge  on  land,  118-120. 

meaning  of  the  term  "  lease,"  118-120,  121,  122,  123,  124, 

125,  127. 
means  to  alienate,  not  prevent  alienation,  124. 
when  trustee,  second  class,  may  receive  rents,  127. 
(7.)   Trust  to  satisfy  mortgage  from  rents.  120-123. 
when  this  would  cause  accumulation,  120,  122. 


408  INDEX. 

(References  are   to  Pages.) 

TRUST,  SUSPENSION  BY.— Continued. 

not  authorized  purpose  of  accumulation,  120,  121. 

two  classes  of  trusts  are  to  effect  alienation,  121. 

two  others  are  to  prevent  alienation,  121. 

trust  to  mortgage  belongs  with  former,  122. 

under  such  trust,  trustee  cannot  apply  rents,  122. 

methods  of  employing  rents  to  pay  mortgage,  122. 

whether  trustee  can  ever  apply  rents  to  mortgage,  122,  123. 

trust  for  accumulation,  infant  also  remainderman,  123. 

whether   payment   of   mortgage   then    allowable   accumu- 
lation, 123. 

death  of  infant,  devolution  of  property,  123,  132. 

where  accumulations  would  then  vest,  123. 

effect  of  will  of  infant,  123. 

disposition  of  accumulations  by  original  instrument,  123, 
132. 
(8.)   Trust  to  pay  annuity  from  rents,  123-127. 

meaning  of  "lease"  for  such  trusts,  118-120,  121,  122, 
123,  124. 

does  not  cover  technical  lease  by  trustee,  124. 

such  lease  to  pay  annuities,  not  allowed,  124. 

trust  to  lease  is  a  trust  to  alienate,  124. 

trust  to  lease  is  not  a  trust  for  suspension,  124. 

trust  to  lease  does  not  authorize  receipt  of  rents,  124. 

trust  for  annuities  from  rents,  falls  within  third  class,  125. 

third  class  authorizes  receipt  of  rents  and  profits,  125. 

when  annuities  are  sums  in  gross,  125. 

and  when  consequently  assignable,  125. 

trust  for  annuities,  third  class,  causes  suspension,  125. 

trust  to  pay  specified  sums  from  rents,  125. 

annuities  may  be  payable  under  second  class,  126. 

annuities  may  be  charged  on  realty  or  personalty,  126. 

word  "  annuities  "  does  not  change  statute  in  substance, 
126. 

annuities  may  be  payable  through  power,  126. 

bequest  of  annual  interest  on  specified  sum,  127. 

future  annuities,  cross-remainders,  127. 

in  what  cases  annuities  transferable,  126. 

when  transferable,  no  suspension,  127. 
(9.)  Statutory  period,  trusts  to  accumulate,  127-133. 

the  statutory  provisions,  127-128. 

same,  personal  property,  132-133. 

accumulation  only  for  statutory  purposes,  127,  129. 


INDEX.  409 

(References  are   to  Pages.) 

TRUST,  SUSPENSION  BY.— Continued. 

restoration  of   depletion,   from   rents,   not   accumulation, 

129. 
royalties  from  ore  excavated,  added  to  principal,  129. 
anticipatory  payment  of  income,  restored  from  rents,  129. 
premium  on  bonds  bought,  rents  reserved  against,  129. 
accumulation  only  within  statutory  limits,  127,  129,  135. 
unless  allowed  by  statute,  accumulation  void,  127,  128. 

129,  133. 
possible  trifling  exceptions,  132. 
may  commence  on  creation  of  estate,  128,  132. 
for  minors  than  in  being,  128,  130,  132. 
infant  en  ventre  sa  mere,  is  in  being,  47,  48,  130. 
to  terminate  by  their  majority,  128,  132. 
may  commence  after  creation  of  estate,  128,  132. 
within  time  for  vesting  of  future  estates,  128,  130. 
or  in  personalty,  time  for  suspension  of  ownership,  132. 
and  during  minority  of  beneficiaries,  128,  130,  132. 
to  terminate  by  their  majority,  128,  131,  132. 
if  term  named  too  long,  only  excess  void,  128,  131,  133. 
no  accumulation  before  birth  of  infant,  130. 
anticipation  of  accumulation,  128,  133. 
accumulation  must  be  for  infant  only,  128. 
unless  otherwise  provided  by  statute,  as,  for  charities,  123. 
may  be  implied,  128. 

separable  void  accumulation,  effect  on  general  scheme,  129. 
two  statutes  govern  term  of  suspension,  129. 
accumulation,  when  may  be  after  two  lives,  130,  131. 
in  personal  property,  two  lives  only,  133. 
cannot  be  for  fixed  period,  or  unmeasured  term,  131. 
successive  accumulations,  when,  131. 
at  majority,  fund  belongs  to  minor,  131. 
during  minority,  it  vests  as  it  accrues,  131,  132. 
subject  to  the  trust  during  minority,  132. 
not  divested  by  death  during  minority,  123,  132. 
passes  to  beneficiary's  next  of  kin,  123,  132. 
or  to  his  legatees,  123,  132. 

unless  original  instrument  provides  otherwise,  132. 
when  purpose  ceases,  trust  ends,  43,  44,  59,  60,  115,  116, 
142,  143,  260,  267. 
(10.)  Statutory  period,  trusts  to  apply  rents,  133-143. 
such  trusts  occasion  suspension,  133. 
t(  nn  of  suspension  under  Revised  Statutes,  133. 


410  INDEX. 

(References  are  to  Pages.) 

TRUST,  SUSPENSION  BY.— Continued. 

term  of  suspension  under  Real  Property  Law,  133-143. 
Revised    Statutes,    every    suspension    prohibited,    beyond 

term,  134,  170. 
change  of  form,  in  Real  Property  Law,  134. 
prohibition  now  applies  to  future  estates,  134. 
but  effect  of  statute  unchanged,  134-143,  170. 
suspension  by  trusts  restricted  by  statute,  136. 
disposition  of  rents  and  profits,  how  governed,  136-143. 
controlled  by  same  principles  as  future  estates,  136-143. 
no  change  in  meaning  to  be  assumed,  138. 
legislative  approval  of  this  construction,  138. 
rule  for  real  and  personal  property  presumably  identical, 

138,  252-261. 

term  of  such  trusts  in  personalty  is  restricted,  138. 
decisions  involving  restriction  of  term  of  suspension,  138, 

139,  140,  141. 

trust  to  apply,  no  conveyance  in  contravention,  139-141. 

trust  to  apply,  beneficiary  cannot  assign,  139-141. 

trust  to  apply  causes  suspension,  139-141. 

law  at  testator's  death  controls,  140. 

trust  to  apply,  maximum  term,  Real  Property  Law,  §  42, 

141,  142. 
same,  term  for  each  beneficiary,  Real  Property  Law,  §  96, 

141,  142. 

term  may  be  measured  by  lives  of  beneficiaries,  142. 
the  "  natural  term  "  and  the  "  stipulated  term,"  142. 
when  either  expires,  trust  must  cease,  43,  44,  115,  116, 

142,  143,  260,  267. 

trust  to  apply,  does  term,  cover  further  minority,  143. 
destructibility  of  trusts  by  merger,  revocation,  143-144. 
what  destructible,  according  to  date  of  creation,  143. 
personal  property  trusts,  when  revocable,  143,  144. 
revocable  by  creator,  on  consent  of  persons   interested, 
144. 
(11.)   Combinations  of  different  trusts  and  powers. 
one  or  more  trusts  may  be  combined,  144. 
trusts  and  powers  may  be  combined,  144. 
results  of  such  combinations,  144. 
effect  on  suspension  of  alienability,  144. 
powers  of  sale,  obviating  suspension,  144,  145. 
trust  or  power  may  nullify  alienability,  145. 
if  intent  to  have  suspension  for  undue  term,  void,  145. 


INDEX.  411 

(References  are   to  Pages.) 

TRUST,  SUSPENSION  BY.— Continued. 
(12.)  Rents  and  profits  undisposed  of. 

when  suspension  caused  by  expectant  estate,  145. 

rents  undisposed  of  and  not  accumulated,  145. 

go    to   persons    presumptively   entitled   to   next    eventual 

estate,  145. 
statute  applies  to  real  and  personal  property,  145. 
what  facts  render  it  applicable,  145,  146. 
common  law  rule  for  similar  cases,  146. 
(13.)   Trusts  in  personal  property,  266-277. 
TRUSTEE.    See  Trust,  Suspension  by. 
in  general,  103-108. 
sales  by,  in  contravention  of  trust,  103. 

See  Contravention. 
title  in,  104,  231,  271,  272. 
alien  as,  105. 

creator  of  trust  may  be,  107. 
same  person  as,  and  beneficiary,  108. 
estate  of,  whether  for,  in  fee,  for  life  or  years,  231,  233. 


UNBORN  PERSON. 

limitation  to,  suspension,  18. 
during  life  of,  41. 
divesting  in  favor  of,  162. 
grant  to,  remainder  to  his  children,  180. 
trust  for,  218. 
USES. 

See  Charity. 


VESTED  AND  CONTINGENT.  See  Postponement  of  Vest- 
ing; Contingencies,  Suspension  by;  Remainders; 
Rules;  Statutory  Period;  Expectant  Estates; 
Vesting  ;  Construction. 

alienability  and  vesting,  2-4. 

"  perpetuities  "  and  vesting,  6,  177-204,  215. 

"  remoteness  "  of  vesting,  6,  177-204. 

reasons  for  requiring  vesting,  4-11,  15-16,  177-204,  215, 
216. 

vested  or  contingent,  rules  of  construction,  308-347. 

effect  of  alienage,  17. 

if  vested,  mere  postponed  possession  immaterial,  76-77. 


412  INDEX. 

(References  are  to  Pages.) 

VESTED  AND  CONTINGENT.— Continued. 
See  Possession. 

vested  in  enjoyment,  76. 

vested  in  possession,  86. 

vested  in  interest,  76,  77,  86,  213,  214. 

if  vested  and  alienable,  no  suspension  or  postponement, 
82,  88. 

reversions  are  vested,  perhaps  may  be  contingent,  85. 

future  estates  vested  or  contingent,  85. 

vested,  contingent,  defined,  85. 

vested,  several  senses  of  word,  85. 

vested  contingently,  88,  356. 

vested  subject  to  divesting,  86,  89,  90,  91,  263,  356. 

vested  always  alienable  if  no  trust,  88-90. 

vesting  defeasibly,  implies  contingent  estate,  89. 

contingent,  as  to  person,  or  event,  90. 

vested  right  in  contingent  estate,  91. 

contingent  estates,  rights,  interests,  95. 

contingent  potential  estates,  95. 

what  contingencies  cause  no  suspension  or  postponement, 
96,  97. 

powers  co-operating  with  contingencies  to  effect  suspen- 
sion, 159-171. 

Rule  II,  as  to  vesting,  2,  176,  181-187,  190-195,  197,  202. 

our  statutes  on  vesting,  1-11,  178,  190-204. 

vesting  as  a  means  to  alienability,  183,  186,  187,  188,  192, 
195,  198-204. 


vesting,  common  law  estates  tail,  184,  185,  186. 

contingent  remainders  abolished  in  England,  189. 

statute  later  repealed,  189. 

contingent  and  executory  interests  made  alienable,  190. 

"  must  vest,"  meaning,  210-211,  218,  219. 

death  of  remainderman  pending  precedent  estate,  86,  87, 

88,  91,  211,  312,  316,  332,  333. 
if  once  vested,  Rule  does  not  require  divesting,  211,  212. 
must  vest  in  interest,  meaning,  213-214. 
number  of  allowable  contingencies  unlimited,  213. 
when  vesting  in  possession  required,  213,  214,  233,  234, 

235,  236,  237,  238,  239. 
improbability  of  contingency  immaterial,  214. 
when  vested  remainder  invalidated  by  contingent,  214. 
when  valid  and  void  separable,  214,  290-307. 
vesting  of  remainder  on  fee,  216-220. 


INDEX.  413 

(References  are  to  Pages.) 

VESTED  AND  CONTINGENT.— Contained. 

vesting  of  remainder  on  estate  for  life,  220-228. 

only  vested  can  be  accelerated,  221,  222. 

vesting  of  remainder  on  term  of  years,  229-231. 

contingent  gift  to  corporation,  230. 

vesting  in  charitable  corporation,  230. 

vesting  of  remainder  on  estate  in  trust,  231-239. 

vesting  of  remainder  on  execution  of  power,  239-247. 

effect  on  vesting,  of  power  of 'sale,  247,  261. 

vesting  of  remainder  in  default  of  appointment,  247. 

vesting  of  remainder  to  class,  248,  249. 

vesting,  in  personal  property,  252,  257,  258,  259-261,  262, 
263,  264,  265. 

gifts  for  charity,  279-285. 

vesting  favored  by  law,  10,  311,  346. 

vested  and  contingent  at  common  law,  313-319. 

vested  and  contingent  in  New  York,  319-343. 

definitions,  scope  of,  319-340. 

rules  to  aid  in  distinguishing,  313-347. 
VESTING 

when  required  by  end  of  statutory  period,  175-249. 
VOID, 

when  separable  from  valid,  290-309. 


WAIVER,  25. 
WIDOW. 

See  Lives  in  Being,  (9). 
WIFE. 

See  Lives  in  Being,  (9). 
WISCONSIN,  354-356. 


YEARS,  TERM  OF. 

restraints  on  alienation,  75-83. 
contingent  freehold  limited  on,  179. 
remainder  on,  must  vest  when,  229-231. 
remainder  on,  to  person  in  being,  229. 
limitations  of  chattels  real,  229. 
estate  for,  term  of  suspension  of  ownership,  229. 
remainder  of  freehold  or  chattel  real,  229. 
postponement  of  vesting  for  term  of,  230. 
Whole  number  of  pages,  460. 


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